What was Tenancy Tribunal case 4922473 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 4922473?

The reconciled net award was $100.00.

What type of tenancy dispute was case 4922473?

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

Where can I read the official tribunal order for case 4922473?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11165426-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4922473 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 4922473?

The reconciled net award was $100.00.

What type of tenancy dispute was case 4922473?

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

Where can I read the official tribunal order for case 4922473?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11165426-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4922473 — Mould & damp

Claims and awards in Tenancy Tribunal application 4922473 — net $100.00 NZD. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason
Net award	$100.00

Claims and awards in Tenancy Tribunal application 4922473 — net $100.00 NZD. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason
Net award	$100.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
[The landlord/s] must pay Callum William Bryden and Danielle Wells $720.44 immediately, calculated as shown in the table below.
44 $720.44
All other claims are dismissed.

Reasons

Both parties attended the hearing. The landlord was represented by [The landlord/s representatives] . Background
This tenancy began on 19 December 2023. It was initially for a fixed term, but the parties later agreed that the tenancy was to become periodic from 21 June 2024. The rent is $980.00 per week and a bond of $3,920.00 was paid.
The tenancy came to an end on 22 July 2024, after the tenants gave notice ending the tenancy. The bond has since been refunded in full to the tenants.
The tenants have filed an application claiming breaches of the landlord’s duty to repair and maintain the premises. They also claim breaches under the Healthy Homes Standard (HHS). Compensation and exemplary damages are sought. The tenants claim the house is mouldy, and there are leaks, which the landlord has failed to repair within a reasonable timeframe. In terms of the HHS, the tenants claim the house does not comply with the heating and ventilation standard. They also claim there are ants and wasps, which the landlord did not address promptly.
The tenants have provided oral, photographic and documentary evidence, including texts and emails.
The landlord disputes the tenants’ claim that there has been a failure to repair in a timely way, explaining the steps taken once made aware of the issue. The landlord refers to its own evidence in support, which includes photographic and documentary evidence, including texts, email correspondence and invoices. General principles
In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish, with evidence, that their claim is “more likely than not.”
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.
Exemplary damages are penalties and can only be awarded for an unlawful act, as set out in various sections of the RTA and as listed in Schedule 1A of the Act. They are different from compensation and are designed to punish and deter, more 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. Where one party has proved that the other party has committed a defined unlawful act, before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA. Repairs and mould
The tenants’ evidence is that there were delays in the landlord attending to repairs to the roof following a leak. Mould was detected following the roof leak. They did not notice mould at the start of the tenancy. They believe the mould was detected one or two weeks before the first inspection, which was on 12 April 2024. The tenants have identified the areas as being outside the secondary bathroom/toilet, the hallway, including in the linen cupboard located in the hallway opposite the bathroom. In terms of the extent of the water leak, the tenants note the ceiling paint was bubbling, and there were yellowish stains from dampness. There was no water dripping, so they did not have to place a bucket under it, but there was a visibly sagging ceiling.
Mould was also detected in the walk-in wardrobe, which was either the result of a lack of ventilation or the leak in the second bathroom. They were unable to open the window in the wardrobe. Clothing in the bottom railing was affected. The mould affected their health, and their two young children were sick.
There were also delays in attending to the problems with the ensuite bathroom. The bathroom grout was a brown colour, and a tile was cracked. There were 7 to 8 visits by plumbers. The tenants state they did not use the bathroom for a couple of days. The landlord was notified on 12 April 2024, they followed up multiple times. The problem was fixed (except the floor) on 21 June 2024 after they issued a 14-day notice.
The tenants’ evidence includes photographs, text messages and emails. They seek compensation for the doctors visits, days/time off work, moving fees and the need to pay double rent. There was also the stress and anxiety, with both tenants being on medication.
In response, the landlord has provided a timeline of the events, which the tenants accept in terms of the dates and timeframes. The landlord has also provided other evidence, which includes text messages, emails, photographs, a healthy homes inspection report, evidence of the property condition when purchased, the initial property inspection report, and relevant invoices. Legal framework
The landlord’s obligations are set out under section 45 of the RTA. This includes the requirement that the landlord provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises. 1 The landlord is also required to comply with the healthy homes standards, and 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. See section 45(1A) and Schedule 1A of the RTA.
The extent of the landlord’s obligation to repair was considered in the decision of Barfoot & Thompson v Casey. 2 The Court noted that there was no absolute liability/responsibility obligation, so the landlord does not have to foresee a latent and unobservable defect before it causes damage. The tenant has to notify the landlord as soon as possible after discovery of any damage to the premises, or of the need for repair. 3 Once notified, the landlord is obliged to repair within a reasonable time. The Court stated: ... the obligation of the landlord, under s.45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances; and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem may be. 4
In relation to the issue of mould, as noted by the Tribunal in Semmens v Wadman, 5 mould is commonly present throughout all residential dwellings in New Zealand to some degree. Adjudicator Woodhouse explained that simply having mould in the premises would not be sufficient to establish a breach on the part of the landlord for which compensation can be ordered: Rather, what a tenant must establish, is that there are defects with the premises which have caused mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling that meets the required building standards.
In this case, the tenants must prove, on the balance of probabilities, that the premises was not in a reasonable state of repair, and that the landlord had notice of the problem and failed to repair within a reasonable time. In terms of the issue 1 Section 45(1)(b) 2 CIV-2005-004-001762, 7 November 2007 3 Section 40(1)(d) 4 Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085 5 [2022] NZTT Manukau 310605 of mould, the tenants must establish that there are defects in the premises that caused the mould to develop, or to be at a more extensive level than would otherwise be reasonably expected.
Taking into account the evidence and submissions of both parties, my findings are set out below. Bathroom
In terms of the initial leak detected on the bathroom floor, the landlord’s timeline shows this was reported on 29 December 2023, the landlord inspected the area the following day, a plumber attended on 31 December 2023. So, in terms of the reporting and investigation, I am satisfied that the landlord acted promptly, and there were no undue delays.
I note there was a need for the plumber to attend later, but there was ongoing communication between the landlord and tenants about this. The plumber completed the toilet repair on 4 January 2024. As the water appeared again on the tiles in this bathroom, there was a need for the shower grout to be resealed, which the plumber returned to do on 11 January 2024.
On balance, I find the landlord acted promptly and took all reasonable steps to try to resolve this issue. Therefore, there has been no breach by the landlord in terms of its responsibilities. However, it is acknowledged that there were multiple disruptions for the tenants, and they were without the full use of the bathroom for a few days, for which they ought to be compensated. Roof leak and mould
Regarding the roof leak and mould, both parties agree that the problem was first reported on 12 April 2024. However, no further steps were taken until 23 May 2024. Repairs were initially undertaken on 23 May 2024. The problem reoccurred, the tenants issued a 14-day notice, and further repairs were completed on 22 June 2024. The landlord has also explained that rain from 16 to 23 May prevented the tradespeople undertaking the repairs sooner.
On balance, I agree that the initial investigation of the issue could have been undertaken sooner. In part, this appears to be the result of some miscommunication. I also accept that the landlord genuinely believed that the issue only became problematic in May 2024, and once alerted, did then take active steps to remedy the problem. Some of the delays were due to factors outside the landlord’s control.
It is generally accepted that in Auckland, many houses produce mould, particularly in view of the levels of humidity in this region. Such mould can usually be addressed by wiping with an appropriate cleaner. Where a property has an inherent problem or a leak causing mould, then the landlord will have a responsibility to remedy the fault. As noted by the Tribunal in Hullia v Tran & Vu 6 the premises must be able to be used and lived in, in the normal way, without excessive mould developing. If this cannot be done, then the problem of mould falls on the landlord to remedy under their obligations to maintain the property.
The presence of mould in a property can be caused by the state of the premises or a lack of ventilation. The fact that some mould was in the house is not enough to show that it was not in a reasonable state of repair, and the opinion of unqualified persons is often not persuasive: Repia v Walsh Trust. 7
In this case, I find that the tenants have established that the mould on the ceiling in the area of the roof leak was due to a defect that needed to be repaired. In terms of the cause of mould in the wardrobe, this is less clear, so any claimed loss has not been shown to be due to an inherent problem with the premises. There is also the landlord’s evidence which supports the finding that the house was compliant with the HHS (as discussed below). The tenants have claimed health issues arising from the mould, however, this is not supported with medical evidence.
I find there is insufficient evidence to establish that the condition of the house was such that the tenants had to move out. The tenants signed a fixed term tenancy and the landlord agreed to release them from the obligation to continue paying rent to the end of the fixed term. Once the tenancy became periodic, the tenants ended the tenancy by giving notice. The claimed loss from moving house is a cost ordinarily incurred by a tenant at the end of a tenancy.
Overall, having regard to the nature and duration of the repair issues involving the bathroom and leaking roof, the resulting effect for the tenants, including disruptions, loss of use of the bathroom, noting the presence of mould following the roof leak, the amount of $400.00 is awarded in compensation. Heat pump and gas connection
The tenants claim there was water dripping from the heat pump unit when the air conditioning function was switched on. The landlord has given evidence about the attempts made to resolve this issue. As the evidence is evenly balanced, I find the tenants have not established there has been a breach by the landlord in relation to the repair of the heat pump.
However, in terms of the gas and hot water, I accept that there was an unreasonable delay in the tenants getting their gas connected. They were unable to cook or have access to gas for hot water for three days. The landlord accepts 6 [2018] NZTT Manukau 4138867 7 DC Waitakere, CIV-2011-090-00056, 27 April 2011 their evidence in this regard. They are to be compensated, and I consider the amount of $300.00 ($100.00 per day) to be reasonable. Exemplary damages
Where a landlord has breached any of their obligations under section 45 of the Residential Tenancies Act 1986, exemplary damages may be awarded. It must be shown that a party has committed an unlawful act intentionally, and the Tribunal must be satisfied that it would be just to make the award, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. 8
In Birch v Otautahi Community Housing Trust (referred to above) 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.
Applying the statutory test, and noting the principles set out in Birch v Otautahi Community Housing Trust (above), I consider there to be insufficient evidence of intent in this case for the Tribunal to award exemplary damages, since it has not been shown that the landlord deliberately turned its mind to the unlawful act and set out to commit it. 8 Section 109(3) of the RTA Healthy Homes Standards
The tenants allege breaches by the landlord under the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS). Section 45(1)(bb) of the RTA requires the landlord to comply with these standards. The tenants have raised issues regarding compliance with the heating and ventilation standards. The tenants consider that, as a result of the above breaches under the HHS, the premises is mouldy.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
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. The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. The HHS does provide exemptions in specific circumstances. Breaching this obligation is an unlawful act for which exemplary damages may be awarded.
In this case, the landlord has provided a Healthy Homes Standards assessment report completed by Trust Property Service following an assessment on 10 December 2023. This report shows the premises complies with all requirements under the HHS. In terms of the heating standard, the report notes that the main living space has a heat pump. This heat source was able to heat the main living space and was compliant with the HHS.
Regarding the ventilation standard, the assessor concludes there is adequate ventilation that meets the HHS. It is noted that there is a compliant rangehood in the kitchen and extractor fan in the bathroom. Both were ducted to the outside and were in good working order. Furthermore, all bedroom and living spaces had openable windows that could be fixed in the open position with a net openable area of at least 5% of the floor area.
Furthermore, the report notes there is a ground moisture barrier, compliant underfloor insulation and drainage, and the home was free of sources of draughts. The assessor also noted that the home “has no visible mould,” which is consistent with the tenants’ evidence that they did not detect mould at the start of the tenancy. The tenants have not provided any contrary evidence to challenge the findings in the HHS report.
Overall, I find no breach under the HHS heating or ventilation standard has been established. Therefore, these claims are dismissed. Pests
The tenants claim there was an ant infestation a week after they moved in. They have provided evidence of their communication with the landlord regarding this issue. They consider the landlord ought to have arranged for professional pest eradication measures earlier. They state the landlord was advised on 12 April 2024 and a professional came on 6 June 2024, sprayed the house and there were no more ants afterwards. There were also wasps, located outside, and this issue was only attended to on 27 May 2024, when traps were set.
In this case, I find the landlord took adequate steps to address the ant and wasp issues, as shown by the evidence provided. This may not have been within a timeframe acceptable to the tenants, but in the context of the events, I consider the approach has, on the whole, been reasonable.
In any event, the evidence concerning the cause of the infestation of insects is unclear. Therefore, I am not persuaded that there is sufficient evidence to show a breach on the part of the landlord. There may well be pests around the premises, but that is not of itself unusual. It is not uncommon for pests to enter dwellings, even where the building is new, maintained to a high standard and kept immaculately clean. The tenant’s obligations, even where they are keeping the premises reasonably clean and tidy, can extend to some pest control. More is needed to establish this type of claim than the description of pests being present.
Accordingly, this claim is dismissed. Filing fee and name suppression
Because the tenants have established some of their claims, the landlord is to pay the tenants’ filing fee.
An application for suppression has been made in this case by the landlord only. The Tribunal, having had regard to the interests of the parties and to the public interest, and noting that some claims have been established by the tenants, while others have not, orders suppression of the landlord’s name and identifying details.

Tenancy Tribunal case 4922473 — Mould & damp

At a glance

Tenancy Tribunal case 4922473 — Mould & damp

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions