What was the outcome of Tenancy Tribunal case 4913716?

The tribunal order states: The tenants’ application for exemplary damages for alleged landlord breaches

How much money was awarded in case 4913716?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4913716?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4913716?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11669783-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4913716?

The tribunal order states: The tenants’ application for exemplary damages for alleged landlord breaches

How much money was awarded in case 4913716?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4913716?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4913716?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11669783-Tenancy_Tribunal_Order.pdf.

16 Glenreagh Place, Torbay, Auckland 0630 Tenancy Tribunal Case 4913716 — Rent arrears

Order

The tenants’ application for exemplary damages for alleged landlord breaches amounting to unlawful acts, and for compensation, is dismissed.
The tenants’ application for exemplary damages for the landlord’s failure to appoint an agent is withdrawn.
The landlord’s application is dismissed.

Reasons

Both parties attended the hearing I held on 17 March 2025. Both tenants attended. Ms Back and her father attended for the landlord with their representative Ho Hyun Back. The Tribunal was assisted by a Korean interpreter.
Both parties gave evidence. The Tribunal also heard evidence from the landlord’s witness Mr Kwangsun Choi. Background
The tenancy started on 16 July 2022 and ended on 13 July 2024.
On 8 June 2024, the landlord gave the tenants 63 days’ notice terminating the tenancy because they required the premises for their own use.
Shortly after that, on 12 June 2024, the tenants lodged their application. They seek compensation and/or exemplary damages for the alleged failure by the landlord to maintain and repair the premises and to ensure that the premises complied with the Health Homes Standards (HHS). They seek a declaration that the notice terminating the tenancy was a retaliatory notice for which they should also be awarded exemplary damages.
The tenants sought exemplary damages for the alleged failure by the landlord to appoint an agent while outside New Zealand. At the hearing, the tenants withdrew that part of their application.
On 2 March 2025, the landlord filed a cross application. The landlord alleges a failure by the tenants to report maintenance issues including the presence of mould.
The landlord alleges that the tenants have exaggerated issues about uninhabitability and the danger they faced due to a leaning retaining wall. The landlord has referred to the tenants paying rent and utility bills late, delaying access for repairs, improperly using a waste disposal unit, causing damage to the backyard where a trampoline was placed, their failure to leave the premises reasonably clean and tidy when they vacated, and general miscommunication issues.
The landlord seeks reimbursement of a building report produced in evidence.
At the hearing, the landlord said they made no claims for the incorrect use of the waste disposal unit, cleaning, and damage to the backyard, so that part of their applicant is redundant.
The parties agreed that the bond has been refunded to the tenants less a small deduction for outstanding water rates. There is no bond issue for the Tribunal to address. Issues
The issues the Tribunal must determine are these: •Did the landlord fail to maintain and repair the premises and fail to comply with the HHS? •Was the landlord’s notice to terminate the tenancy a retaliatory notice? •Did the tenants fail to report maintenance and mould issues? •Can the Tribunal make other orders sought by the landlord? •Can the Tribunal order reimbursement of the cost of a report the landlord produced in evidence? Relevant law Statutory provisions
Section 54 of the Residential Tenancies Act 1986 (RTA) allows the Tribunal to declare a notice to terminate a tenancy retaliatory and to set it aside if, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by the RTA or any other Act. If declared retaliatory, the giving of the notice to terminate the tenancy is an unlawful act.
Section 40 RTA sets out a tenant’s responsibilities. Included among them are the responsibility to pay rent when due; to keep the premises reasonably clean and tidy; to leave the premises in a reasonably clean and tidy condition; and to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs.
Section 45 RTA sets out a landlord’s responsibilities. Included among them are the responsibility to provide the premises in a reasonably clean state; to provide and maintain the premises in a reasonable state of repair (having regard to the age and character of the premises); and to comply with the Healthy Homes Standards (HHS). Compensation and exemplary damages
The Tribunal may award compensation to a party for losses arising from a proven breach or breaches by the other party of their statutory responsibilities.
Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
In Birch v Otautahi Community Housing Trust 1 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
Exemplary damages are different. They are designed to punish and to deter. They are like a fine.
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.
In Birch, the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Findings Did the landlord fail to maintain and repair the premises and fail to comply with the HHS?
The tenants said that when they moved in there were some repair and maintenance issues, including some handles missing on windows. They said 1 [2020] NZDC 17667 some mould was present and during an inspection in July 2024 they pointed out a spot of mould at the top of the stairs. They also noticed a crack in a wall.
The tenants said they were concerned to point out any matters that needed repair as they arose.
The tenants’ main concern was an embankment which they believed became unstable after Cyclone Gabrielle when there was flooding, including in the basement.
The tenants said that 2 rooms became unusable over time because they feared the embankment would collapse. They said the first time they verbally told the landlord about that was in early June 2024; it was their choice not to use the 2 rooms.
The tenants said they were concerned about leaking from the shower and they were critical of the fact that only silicone sealing was carried out. They became concerned (after doing their research) that there would have been black mould behind the wall boards. Their concern was the presence of mould rather than the leak.
Mr Choi said he was a registered member of the New Zealand Institute of Building Inspectors, an engineer, and an architect with registration in the USA.
He said he went to the premises 4 times, first in 2017 when the owners were living there. In 2018 and 2022 he checked for mould and in July 2024 he was asked to do a full property inspection.
Mr Choi said that based on what he observed, the premises were in good condition and were weather tight. He said that the retaining wall was on a lean but there was no imminent risk to the house.
Mr Choi said there was evidence of leaking from the shower in the study and the hallway with some damage. The wall and carpet were dry in the study but there was some wetness in the hall.
Mr Choi said he did not see any mould in the master bedroom or on the ceilings during his July 2024 inspection, though he had seen some ceiling mould in 2018 and 2022, but there was evidence of leaking in the timber base boards of the affected areas. The wetness had spread about 20-25cm wide and 10-15cm deep on the carpet in the hall.
Other than that, Mr Choi said he observed nothing out of the ordinary only fair wear and tear.
I asked Mr Choi if he saw a broken window latch. He said there was a broken latch in the top floor family room, but the window could be closed completely and there was no draught.
Sometimes when new immigrants encounter New Zealand housing stock, they can be surprised by what they perceive as fundamental defects.
They can also be surprised how mould can develop in the humid climate of places such as Auckland.
The tenants have not proved that the premises failed to comply with the HHS. The landlord produced in evidence a Certificate of Compliance with the HHS dated 19 August 2022. The tenants produced no HHS assessment to cast doubt on the accuracy of the landlord’s evidence. I do not find that the premises failed to comply with the HHS based on the evidence produced.
That there might have been small patches of mould does not establish any landlord breach, nor the fact that some minor repairs were required.
The tenants have not proved the presence of black mould behind the wall where there was a leak; they were just concerned that there might have been mould there.
This is not a case where the landlord simply did nothing. The landlord attended to some repairs once notified (even if the tenants did not agree with the work carried out) and they arranged for Mr Choi to inspect the premises.
Mr Choi is a highly qualified person and was an impressive witness. His evidence does not establish that there was any significant repair and maintenance issue ignored by the landlord.
That the tenants did not use 2 rooms for fear of the retaining wall collapsing was their choice. Mr Choi confirmed that when he inspected the wall, there was no imminent risk.
The landlord confirmed that after several inspections by their insurer no abatement notices were issued, and no safety issues were raised. The landlord submitted, and I accept, that there is no objective evidence to support the tenants’ claims.
While the significant weather events in Auckland near the start of the tenancy had temporary effects, the tenants have not established that the landlord failed to maintain and repair the premises to an extent that would result in a finding that the landlord breached their section 45 RTA responsibilities.
I find that the landlord generally responded to repair and maintenance requests.
For the tenants to succeed on a claim for exemplary damages, they must establish first that the landlord committed a defined unlawful act, and then, that the landlord deliberately turned their minds to that act and decided to commit it. In other words, that they deliberately decided not to repair and maintain the premises. The tenants have failed to establish that.
What about compensation then? Only if the landlords were negligent would the Tribunal consider awarding compensation for a proven breach. But the tenants have not established that either. Was the landlord’s notice to terminate the tenancy a retaliatory notice?
The tenants allege that the landlord terminated the tenancy in retaliation for them raising repair issues.
In response, the landlord said the timing was coincidental. They described how a recycling plant started operating next to their house, despite a neighbours’ petition to the local authority opposing it. They said their quality of life was significantly impacted and for that reason they decided to move to these premises.
A temporal connection can sometimes, but not always, establish a causal connection.
The landlord confirmed that they moved into the premises after the tenants gave 28 days’ notice to end the tenancy and they remain living there.
I had the opportunity to assess the landlord’s evidence on this issue. I found the evidence believable.
I do not find that the landlord’s notice to terminate the tenancy was a retaliatory notice, in response to repair issues raised by the tenants. The landlord did not commit any unlawful act when they issued the termination notice.

Did the tenants fail to report maintenance and mould issues?

I do not find that the tenants failed to report repair and maintenance issues. The evidence shows a lot of communications between the parties. They were in contact, and matters were raised, discussed, and generally actioned.
I dismiss this part of the landlord’s application.

Can the Tribunal make other orders sought by the landlord?

The landlord referred to the tenants being late with some rent and utility payments. There is no order the Tribunal can make as there were no rent arrears at the end of the tenancy. A small amount of outstanding utility charges was deducted from the tenants’ bond by agreement.
Collecting late rent payments is part and parcel of the business of being a landlord. It is akin to a small business owner chasing up an overdue invoice.
Even if there were communication issues between the parties., there is no order the Tribunal can make to remedy that.
Nor can any order now be made for any delayed access by the tenants for repairs. Only if the tenancy were current, and the landlord proved that the tenants were in breach by denying the landlord, or their contractors, access could the Tribunal make an order for the tenant to provide access.
The issues raised by the landlord under this head of claim are frustrations rather than breaches for which the Tribunal would award compensation. These claims are dismissed. Can the Tribunal order reimbursement of the cost of a report the landlord produced in evidence?
Each party bears the cost of producing their evidence. The Tribunal cannot order the tenants to reimburse the landlord for the cost of the report as claimed. Comment
That the Tribunal can make orders does not always mean that it should. Generally, it seems that this tenancy progressed like most without anything exceptional. The Auckland weather events were a natural occurrence, not something caused by the landlord and the parties appear to have navigated those events sensibly and well.
The tenants had concerns about possible black mould and the possible risk of the retaining wall failing. But those were suspicions only; there is no factual basis for them.
It seems that things progressed once the landlord gave notice to terminate the tenancy. The Tribunal acknowledges that the termination of a tenancy is a stressful happening. As it tuned out, the tenants were able to give 28 days’ notice to end the tenancy during the 63-day notice period, and they moved to a new tenancy.
When the Tribunal considers applications such as these, it does so based not only on the evidence specific to the case but also on its experience of adjudicating many thousands of applications over time.
Here, there were no doubt some frustrations, but the alleged unlawful acts and other breaches are not established by either party on the required balance of probabilities. Result
Both applications are dismissed for the reasons given. Name suppression
Both parties applied for name suppression. The criteria for name suppression as set out in section 95A RTA are not met in this case as both applications are unsuccessful.

Tenancy Tribunal case 4913716 — Rent arrears at 16 Glenreagh Place, Torbay, Auckland 0630

At a glance

Tenancy Tribunal case 4913716 — Rent arrears at 16 Glenreagh Place, Torbay, Auckland 0630

At a glance

Claims & awards

Order

Reasons

Did the tenants fail to report maintenance and mould issues?

Can the Tribunal make other orders sought by the landlord?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did the tenants fail to report maintenance and mould issues?

Can the Tribunal make other orders sought by the landlord?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions