What was Tenancy Tribunal case 4927153 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 4927153?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4927153?

The primary dispute was State of repair. Related themes: Cleanliness, Healthy homes, Property damage, Exemplary damages.

Where can I read the official tribunal order for case 4927153?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10757167-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4927153 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 4927153?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4927153?

The primary dispute was State of repair. Related themes: Cleanliness, Healthy homes, Property damage, Exemplary damages.

Where can I read the official tribunal order for case 4927153?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10757167-Tribunal_Order_Redacted.pdf.

23A Old South Road, Okato, Okato 4335 Tenancy Tribunal Case 4927153 — State of repair

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 application is dismissed.

Reasons

Both parties attended the hearing.
The tenant has applied for exemplary damages. She alleges that the landlord failed to maintain and repair the premises, a breach of its responsibilities under section 45(1)(b) of the Residential Tenancies Act 1986 (RTA). Background
The tenancy started on 5 April 2024. It was for a 1-year fixed term. The tenant vacated the tenancy last weekend. Issues surrounding the tenant breaking the fixed term tenancy are not before the Tribunal today.
Before the tenancy started, the landlord (the owner) arranged for a Healthy Homes Standards (HHS) assessment. The assessment identified issues that required remedy. One of the matters raised was the need for maintenance of the door rope on the log burner and the fire bricks.
The tenant provided photos of the fire bricks and communications between the parties, including between the owner and their agent, continued.
On 25 May 2024, the tenant texted her property manager to say she had discovered that the firebox was not safe after she cleaned it. She was able to continue to use the log burner, however, but took sensible precautions.
The landlord dealt with two contractors, one a contractor that cleans and maintains log burners, the other a company that supplies and instals them.
A new log burner was supplied and certified fully compliant on 9 July 2024. A new HHS certificate was then generated. Issues
The Tribunal must determine these issues: •Did the landlord commit an unlawful act by failing to maintain and repair the log burner? •If so, what should the remedy be? Law
A failure by a landlord to comply with its obligation to provide and maintain the premises in a reasonable state of repair is an unlawful act – see section 45(1A) RTA. If proved, the Tribunal can award exemplary damages up to $7,200.00 for this breach.
Exemplary damages 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.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 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: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest. Discussion
The whole point of a HHS assessment is to establish whether the premises are compliant and to identify defects to be remedied.
The HHS assessment identified among other things that the log burner required maintenance before it met the required heating standard.
The landlord acted on the assessment. It contracted two companies to assess the log burner, one a maintenance and cleaning company, the other a log burner installer.
The tenant said she was never informed of any issues with the log burner and only discovered the holes in the firebox when she removed bricks for cleaning.
She said she specifically asked her property manager whether the log burner was safe for use and whether the flue had been cleaned and was assured it was. The landlord’s representative said he did not recall that.
To succeed on a claim for exemplary damages, the tenant needs to establish that the landlord ‘turned its mind to the unlawful act and deliberately set about to commit it’.
Clearly, that is not the case here. The landlord/owner, after taking advice from two contractors, decided that the wood burner needed to be replaced and it did so. Had it failed to act, the tenant’s claim for exemplary damages would probably have succeeded.
But having acted on the findings of the HHS assessor, the landlord did not intentionally commit an unlawful act.
A failure to meet the HHS standard is different from a finding that the log burner was unsafe to use.
The time frame taken for the assessment by the two contractors and the replacement of the log burner was not excessive. Allowing for the professional assessments and for the necessary consent to be obtained, the replacement was completed about three months after the tenancy started.
Without the necessary element of intent, the tenant’s claim for exemplary damages cannot succeed and is dismissed.
I have considered whether to award the tenant some compensation for the time it took to have the new log burner installed.
The tenant said she was able to continue to use the log burner; she took sensible precautions such as ensuring that no wood was placed close to it, and she allowed it to burn down at night.
The tenant’s concern was about what might have happened, not about what did happen. She suffered no actual consequence because of the log burner having to be replaced. She provided no evidence of a risk of actual harm and no evidence of any loss.
Any defects in the way the landlord might have communicated with the tenant did not result in a loss that should be compensated.
The tenant has failed to establish any claim for compensation. Result
The tenant’s application is dismissed. The criteria for awarding exemplary damages are not met in this case. Nor does the tenant have a valid claim for compensation. Name suppression
The landlord sought an order for name suppression. The landlord is entitled to name suppression as it has successfully defended the application. The tenant is not entitled to name suppression as the application is unsuccessful – see section 95A RTA.

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 application is dismissed.

Reasons

Both parties attended the hearing.
The tenant has applied for exemplary damages. She alleges that the landlord failed to maintain and repair the premises, a breach of its responsibilities under section 45(1)(b) of the Residential Tenancies Act 1986 (RTA). Background
The tenancy started on 5 April 2024. It was for a 1-year fixed term. The tenant vacated the tenancy last weekend. Issues surrounding the tenant breaking the fixed term tenancy are not before the Tribunal today.
Before the tenancy started, the landlord (the owner) arranged for a Healthy Homes Standards (HHS) assessment. The assessment identified issues that required remedy. One of the matters raised was the need for maintenance of the door rope on the log burner and the fire bricks.
The tenant provided photos of the fire bricks and communications between the parties, including between the owner and their agent, continued.
On 25 May 2024, the tenant texted her property manager to say she had discovered that the firebox was not safe after she cleaned it. She was able to continue to use the log burner, however, but took sensible precautions.
The landlord dealt with two contractors, one a contractor that cleans and maintains log burners, the other a company that supplies and instals them.
A new log burner was supplied and certified fully compliant on 9 July 2024. A new HHS certificate was then generated. Issues
The Tribunal must determine these issues: •Did the landlord commit an unlawful act by failing to maintain and repair the log burner? •If so, what should the remedy be? Law
A failure by a landlord to comply with its obligation to provide and maintain the premises in a reasonable state of repair is an unlawful act – see section 45(1A) RTA. If proved, the Tribunal can award exemplary damages up to $7,200.00 for this breach.
Exemplary damages 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.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 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: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest. Discussion
The whole point of a HHS assessment is to establish whether the premises are compliant and to identify defects to be remedied.
The HHS assessment identified among other things that the log burner required maintenance before it met the required heating standard.
The landlord acted on the assessment. It contracted two companies to assess the log burner, one a maintenance and cleaning company, the other a log burner installer.
The tenant said she was never informed of any issues with the log burner and only discovered the holes in the firebox when she removed bricks for cleaning.
She said she specifically asked her property manager whether the log burner was safe for use and whether the flue had been cleaned and was assured it was. The landlord’s representative said he did not recall that.
To succeed on a claim for exemplary damages, the tenant needs to establish that the landlord ‘turned its mind to the unlawful act and deliberately set about to commit it’.
Clearly, that is not the case here. The landlord/owner, after taking advice from two contractors, decided that the wood burner needed to be replaced and it did so. Had it failed to act, the tenant’s claim for exemplary damages would probably have succeeded.
But having acted on the findings of the HHS assessor, the landlord did not intentionally commit an unlawful act.
A failure to meet the HHS standard is different from a finding that the log burner was unsafe to use.
The time frame taken for the assessment by the two contractors and the replacement of the log burner was not excessive. Allowing for the professional assessments and for the necessary consent to be obtained, the replacement was completed about three months after the tenancy started.
Without the necessary element of intent, the tenant’s claim for exemplary damages cannot succeed and is dismissed.
I have considered whether to award the tenant some compensation for the time it took to have the new log burner installed.
The tenant said she was able to continue to use the log burner; she took sensible precautions such as ensuring that no wood was placed close to it, and she allowed it to burn down at night.
The tenant’s concern was about what might have happened, not about what did happen. She suffered no actual consequence because of the log burner having to be replaced. She provided no evidence of a risk of actual harm and no evidence of any loss.
Any defects in the way the landlord might have communicated with the tenant did not result in a loss that should be compensated.
The tenant has failed to establish any claim for compensation. Result
The tenant’s application is dismissed. The criteria for awarding exemplary damages are not met in this case. Nor does the tenant have a valid claim for compensation. Name suppression
The landlord sought an order for name suppression. The landlord is entitled to name suppression as it has successfully defended the application. The tenant is not entitled to name suppression as the application is unsuccessful – see section 95A RTA.

Tenancy Tribunal case 4927153 — State of repair at 23A Old South Road, Okato, Okato 4335

At a glance

Tenancy Tribunal case 4927153 — State of repair at 23A Old South Road, Okato, Okato 4335

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions