What was Tenancy Tribunal case 4934536 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 4934536?

Compensation: Loss Of Amenity: $2,971.15 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4934536?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4934536?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11398709-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4934536 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 4934536?

Compensation: Loss Of Amenity: $2,971.15 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4934536?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4934536?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11398709-Tribunal_Order_Redacted.pdf.

Unit/Flat 2, 38 Gulf View Road, Murrays Bay, Auckland Tenancy Tribunal Case 4934536 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4934536 — net $7,098.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of amenity	$2,971.15	Loss of amenity
Exemplary damages: Failure to provide/maintain s45	$3,000.00	Failure to provide/maintain s45
Exemplary damages: Failure to lodge bond	$750.00	Failure to lodge bond
Exemplary Damages: Failing to provide HH Compliance Statement and associated documents	$350.00	Failing to provide HH Compliance Statement and associated documents
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$7,098.15
Total payable by Landlord to Tenant	$7,098.15

Claims and awards in Tenancy Tribunal application 4934536 — net $7,098.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of amenity	$2,971.15	Loss of amenity
Exemplary damages: Failure to provide/maintain s45	$3,000.00	Failure to provide/maintain s45
Exemplary damages: Failure to lodge bond	$750.00	Failure to lodge bond
Exemplary Damages: Failing to provide HH Compliance Statement and associated documents	$350.00	Failing to provide HH Compliance Statement and associated documents
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$7,098.15
Total payable by Landlord to Tenant	$7,098.15

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant names and identifying details.
Meisheng Zhu must pay [The tenant/s] $7,098.15 immediately.

Reasons

All parties attended the hearing.
The tenants bring a number of claims against the landlord of this tenancy. The tenancy began on 28 October 2023 and concluded on 5 July 2024.
The premises consist of a 3-level house with 4 bedrooms, kitchen and 2.5 bathrooms. The tenancy was a fixed term for 12 months and concluded early by mutual agreement.
The applicants are required to establish their claims to the civil law standard of proof, on the balance of probabilities.
Before I consider the specific claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. In this case, as it is a tenant application, that means that it is for the tenants to establish their respective claims on “the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The tenants submitted substantial documentation with their application. There was also an oral hearing. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. I also acknowledge the material filed by the landlord in response.
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. Tenant claims: Failure to provide premises in a reasonable state of repair:
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must: • provide and maintain the premises in a reasonable state of repair • comply with 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 Residential Tenancies Act 1986. Front door:
The tenants say that the front door gave them ongoing issues during the tenancy in that it did not lock properly. The landlord told them that the door had been damaged by previous tenants. This issue left the tenants feeling unsafe. They say they brought this to the attention of the landlord straight away. The landlord had someone replace the doorknob.
The tenants say the door was split and because of this the new doorknob failed to fix the issue. This was how it was for the duration of the tenancy. The tenants took a photograph of the door on 27 January 2024. They also took a video before they moved out. The video, dated 3 October 2023, clearly showed damage to the front door.
The landlord was shown the video during the hearing.
The landlord says that the door was in a satisfactory condition when the tenants moved in. He says that he responded by sending a locksmith a few days later.
The tenants then sent a further text message to the landlord on 27 January 2024 stating that they were still having problems with the door. The landlord went back again and looked at the door lock and noticed that a screw was lose. He then fixed this himself. The tenants stated that they had to also keep tightening the screw. Leaking:
On 19 November 2023 the tenants notified the landlord regarding leaks. The leaks came from the ceiling in two of the bedrooms. Both these bedrooms were on the middle floor.
They say that the drips were significant.
They placed containers down on the floor so as to not damage the carpet. One of the bedrooms became uninhabitable which meant the tenant had to sleep in another tenant’s room.
In the beginning it was the same leaks but then the carpet became sopping wet. One of the tenants had a ‘Bayleys For Sale’ sign screwed to her ceiling. This was installed by a handyman approximately two months before the tenants moved in. The tenants removed the sign to reveal what appeared to be a landlord repair job.
Good quality photographic evidence dated 10 June 2024 was provided by the tenants in support of this. The tenants say that they begged the landlord to sort the issue of the roof leaking.
On 23 January 2024 a contractor pulled up the wet carpet. This is when the tenants discovered that a leak may have been coming from the middle floor shower. The tenants noticed wet carpet again on 7 February 2024.
Another tenant stated that her finger went through a wet patch in the ceiling while she was inspecting where a leak was coming from. Photographic evidence of this was provided by the tenants in support.
On 11 February 2024 the landlord attended and ‘fixed’ the issue by using a hair dryer on the wet carpet and placed a moisture absorber in the wardrobe and applied a strip of sealant in the shower. This caused mould to grow under the sealant.
On 10 January 2024 black mould was discovered in the corner of the lounge. They say that the landlord attended on 12 January and looked at the issue. The landlord tried to blame the tenants for leaving a window open causing the problem. The landlord also admitted during the conversation that there may have been an earlier issue with a window seal causing the leaks.
The landlord sent a handyman on 23 January 2024 to look at the leaking issues and to look at the floorboards. The landlord also sent a roof specialist on 18 June 2024 to inspect the roof. He says that a roofing professional checked everything and told him that the only way to fix the leaking properly would be to replace the roof. He says the flashing was potentially the issue. The tenants provided a photograph of the contractor lifting the carpet to reveal rotten floorboards.
The landlord stated that the Bayleys sign was a temporary fix. The tenants say that this was not temporary as it was still there in June 2024.
The landlord says that he looked at the shower leak very carefully. He noticed that the seal had ’run out’. He applied new silicon to the joint areas. He also used a hairdryer to dry the wet carpet in a bedroom wardrobe. During the hearing the landlord stated that the black mould was instead a black mark. He suggested that the tenants were responsible for this mark. He also stated that he used a strong cleaner to clean the area.
The tenants provided clear and convincing photographic evidence in support of their leaking claims. The photographs showed clear signs of an amateur and inadequate repair job by the landlord. Wall damage:
The tenants say that there were soft spots on the walls including the entranceway wall which they noticed when they first moved in. They also noticed a crack on the wall in one of the wardrobes. They say that they also noticed bubbling on the lounge wall up near the join to the ceiling. The entranceway was just visible damage. The tenants provided helpful photographic evidence in support of this.
The landlord says that there were three areas which had leaked and had been repaired which had fixed the issues.
The landlord says that the repairs took place approximately one month prior to the start of the tenancy. The landlord also stated that the entranceway was the worst area of the house due to no sun.
I am satisfied that the tenants have established on the balance of probabilities that the landlord has failed to provide the premises in a reasonable state of repair. The evidence provided by the tenants is clear, convincing and confirms without doubt that these premises should not have been rented in its current state.
The claim is proven. Failing to maintain premises in a reasonable state of repair: Kitchen sink:
The tenants say that the kitchen sink leaked. They say that there was a continuous leak under the sink. They discovered this on 7 March 2024.
They had containers stored under the sink and noticed that there was water in one of them. The tenants say they notified the landlord on the same day. They say that the landlord told them that he would check it on his next visit but failed to do so. The tenants have provided a photograph of the leak under the sink taken on 12 June 2024.
The landlord says that he checked it but not for some weeks.
The tenants served a notice to remedy served on landlord dated 11 June 2024. The tenants say that the landlord failed to address the issues listed in the notice.
The landlord says that everything was discussed before reaching a final agreement. This was done after the notice was sent by the tenants.
I am also satisfied that the tenants have established on the balance of probabilities that the landlord has failed to adequately maintain the premises by not repairing issues when they were brought to his attention. This had led to a loss of amenity for the tenants coupled with immense stress.
I am entirely satisfied that the failure to provide and maintain the premises in a satisfactory condition at the start of the tenancy was intentional. The evidence confirming that the property was not ready to rent is abundantly clear. Most of these issues should have been addressed prior to the tenants moving into the property. And because of this the landlord was constantly on the back foot reacting to requests for repairs and maintenance rather than being proactive prior to the start of the tenancy.
Where problems are known but there is a failure to remedy, the unlawful act is intentional. There has been significant publicity about Healthy Home standards which a diligent landlord could be expected to know about. The effect of the failure to maintain significantly affected the tenants’ enjoyment and possibly the health of one of the tenants. It is in the public interest that landlords comply with the law relating to tenancies so that living conditions for tenants are healthy and safe.
I have considered the written response provided by the landlord however I must reject his explanation. During the hearing I found his explanations rehearsed and lacking any credibility. This landlord is no stranger to this Tribunal having appeared earlier on more than one occasion. He would have been very well aware of his obligations. Quite plainly, this landlord should not be in the business of renting properties to tenants.
Taking into account the other factors in section 109(3) I find that there has been an obviously detrimental impact on the tenants due to the breaches by the landlord and there is a clear public interest for tenants, landlords and the public in general to have properties that are properly maintained, healthy, warm and safe.
It would be just to make an order.
I will not impose separate amounts for each identified breach but rather adopt a global figure which reflects the seriousness and multiplicity of breaches.
The maximum allowed by Schedule 1A of the Act is $7,200.00 per breach. Given that the landlord has failed to rectify matters despite previous orders of the Tribunal, I adopt a figure in the mid-range, and order the landlord to pay the tenant $3,000.00 in exemplary damages for failing to provide and maintain the premises. Health issues:
The tenants say that their health was impacted by the state of the property. One of the tenants says that she has a history of asthma. One of the tenants was unaware that her room had a hole in the ceiling. They say that when the landlord was advised about a health issue they were advised to use the heat pump air purifier function.
On 24 April one of the tenants came down with a rash which she had never had before. The tenant provided a photograph of the rash taken on 24 April and attended at Northcare Accident and Medical clinic on 24 April. The doctor was unsure what it was and advised her to take an antihistamine. The tenant provided photographic evidence of the extensive rash on her body.
The landlord responded by saying that ventilation may have been the issue. He also says that there is no medical link to her rash and his property.
I find that there is insufficient evidence to link the alleged health issues with the state of the premises. There is no medical evidence before me confirming that the tenant’s medical condition was attributable to environmental factors associated with these premises. Skin rashes, in my view, are often difficult to determine as there can be many factors at play such as food allergies. Loss of amenity:
The tenants claim that the landlord agreed on a rent reduction based on two of the tenants having to share a room for one month from 10 June 2024 to 5 July 2024. They suggested a 50% reduction in the rent for the one-month period. One of the tenants had to sleep on a spare mattress in another tenants room.
The landlord agreed that they discussed this. He says that there was no reduction in rent due to the final agreement, being an early end to the tenancy and the landlord providing a good reference.
In this case the primary loss I must focus on in deciding the amount to compensate the tenants is what is referred to as a loss of amenity. That is, rather than a direct financial loss the tenant has essentially been paying for something they have not received.
In this case, there has clearly been a loss of amenity. The tenants paid rent and in return expected a clean, dry, warm home that was properly maintained. For the reasons and to the extent outlined in the paragraphs above, they did not receive that.
Overall, I consider a global figure to recompense the tenants for this loss of amenity is $2,971.15. That equates to approximately 10% of the overall rent paid by the tenant for the duration of the tenancy. Discrimination:
The tenant recorded a conversation with the landlord on 12 June 2024. They say that he discriminated by suggesting that being female they were being more sensitive. They say that he was refusing a service because of sexist beliefs.
The landlord says that the tenants are overreacting. He says that he did not discriminate against the tenants. The landlord says that he had a final agreement with the tenants namely, early termination and good reference.
This is not the type of discrimination that the Act confers jurisdiction on the Tribunal to determine. That is limited to the grant of a tenancy and the like. I would not have been satisfied that the landlord discriminated against the tenants.
The claim for discrimination must therefore be dismissed. Threatening messages:
The tenants say that the landlord sent threatening messages. On one occasion they say the landlord sent a text message threatening to contact the Barfoot agent asking them to reconsider their new application. They say they also received a threatening text from the landlord in response to the tenancy hearing date.
The landlord responded by saying that they sorted out everything smoothly and peacefully. He says that he only heard about the Tenancy Tribunal hearing just before Christmas. He said that he did not threaten her but rather remind them about their agreement.
This claim is also dismissed. There is no evidence filed by the tenants in support of this claim which would meet the standard as intended by section 12 of the Residential Tenancies Act. Failure to lodge bond:
The tenants say that the bond was never lodged throughout the tenancy. They called the bond centre who confirmed that the bond had not been lodged. The bond amount was $3396.00. The tenants say that when the bond was returned it came from the landlord’s personal account.
The landlord confirmed he did not lodge the bond. He said that they had financial difficulty which meant that he had to spend the bond money on a new heat pump. He says that he paid them back very quickly.
The tenants claim the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
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) Residential Tenancies Act 1986
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
I am satisfied that the landlord has breached his obligations because the bond was not lodged within 23 working days “after the payment was made”. The bond money does not belong to the landlord, there was no right for him to hold it. This is breach is also serious when viewed globally with the other failings by this landlord.
I consider exemplary damages should be ordered for these reasons: i. I consider it likely the failure to lodge the bond was intentional. The landlord would have been well aware of his obligations to lodge the bond following the payment being made. ii. The effect for the tenants is that their bond was not secure in the Bond Centre. iii. It would be just to make an order.
There is a strong interest for landlords, tenants and the public generally that the bond system be robust, and of course that means landlords lodging tenants bond money as they are required to do.
The landlord has failed to lodge the bond as required. I find he has committed an unlawful act.
The maximum level of exemplary damages for failing to lodge the bond is $1500.00. For reasons as set out above, I order $750.00 exemplary damages to be paid to the tenants. Failure to provide Healthy Homes Compliance Statement:
The tenants say that no Healthy Homes compliance statement was made at the start of the tenancy and no report was provided when requested by them to the landlord.
The tenants made a request on 12 June 2024 at 5.21pm for a copy of the Healthy Homes assessment report. A copy of this email was provided by tenants with their application. They state that it got to the point where things were so bad that they needed to see the actual report.
The landlord stated that he received the request. He also says that there was a report available at the start of the tenancy. The landlord stated during the hearing that he did not provide the tenants with a report. He did provide a copy of the Oncore report dated 14 October 2022 however only provided a copy of the cover page.
The landlord says that there were two issues which failed, namely no heat pump and no moisture barrier.
The landlord stated that he had no money to install a heat pump and that it was the warmer months meaning a heat pump was not so important.
The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.
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) Residential Tenancies Act 1986.
Having considered the evidence provided in support by the tenants I am satisfied that the landlord has breached his obligations in this regard. I allow this claim and award the tenants exemplary damages of $350.00.
The claim is allowed.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act
The tenants have applied for a name suppression order. The tenants are entitled to name suppression as the application is successful – see section 95A RTA.

Tenancy Tribunal case 4934536 — Exemplary damages at Unit/Flat 2, 38 Gulf View Road, Murrays Bay, Auckland

At a glance

Tenancy Tribunal case 4934536 — Exemplary damages at Unit/Flat 2, 38 Gulf View Road, Murrays Bay, Auckland

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