What was Tenancy Tribunal case 4939734 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 4939734?

Compensation: $891.40 awarded to tenant; Compensation: $925.00 awarded to tenant; Compensation: $300.06 awarded to tenant; Compensation: $1,600.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Credit: $256.54 awarded to tenant

What type of tenancy dispute was case 4939734?

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

Where can I read the official tribunal order for case 4939734?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11536622-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4939734 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 4939734?

Compensation: $891.40 awarded to tenant; Compensation: $925.00 awarded to tenant; Compensation: $300.06 awarded to tenant; Compensation: $1,600.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Credit: $256.54 awarded to tenant

What type of tenancy dispute was case 4939734?

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

Where can I read the official tribunal order for case 4939734?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11536622-Tribunal_Order_Redacted.pdf.

20 The Close, Greenhithe, Auckland 0632 Tenancy Tribunal Case 4939734 — Mould & damp

Claims and awards in Tenancy Tribunal application 4939734. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent credit	$256.54	Rent credit
Compensation for moving costs	$891.40	Compensation for moving costs
Compensation for 5 weeks’ storage costs	$925.00	Compensation for 5 weeks’ storage costs
Compensation for cost of petrol/oil	$300.06	Compensation for cost of petrol/oil
Compensation for stress and inconvenience	$1,600.00	Compensation for stress and inconvenience
Filing fee reimbursement	$27.00	Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 4939734. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent credit	$256.54	Rent credit
Compensation for moving costs	$891.40	Compensation for moving costs
Compensation for 5 weeks’ storage costs	$925.00	Compensation for 5 weeks’ storage costs
Compensation for cost of petrol/oil	$300.06	Compensation for cost of petrol/oil
Compensation for stress and inconvenience	$1,600.00	Compensation for stress and inconvenience
Filing fee reimbursement	$27.00	Filing fee reimbursement

Order

The tenants’ names and identifying details must not be published.
Graham Hey must pay [the tenants] $4,000.00 immediately, calculated as shown in the table below.
All other claims are dismissed. DescriptionTenant Rent credit$256.54 Compensation for moving costs$891.40 Compensation for 5 weeks’ storage costs$925.00 Compensation for cost of petrol/oil$300.06 Compensation for stress and inconvenience$1,600.00 Filing fee reimbursement$27.00 Total award$4,000.00

Reasons

I originally heard the tenants’ claim on Microsoft Teams on 29 January 2025. I adjourned the case for Graham Hey to be joined to the proceedings and for a face-to-face hearing.
Today, the tenants attended in person.
Graham Hey attended in person.
Paul Harris attended for Prestige Real Estate.
The tenants claim the landlord and the landlord’s agent failed to provide the premises in a reasonable state of repair and cleanliness. In particular, black mould made the premises unsafe. They seek orders for exemplary damages and compensation. Background
The tenants are a young couple. This was their first tenancy
The tenancy was a disaster. It began on 15 June 2024 and ended on 29 June 2024 because the premises was uninhabitable due to the health and safety risk of ominously black-coloured mould infesting the gib on both sides of a wall shared by the laundry and the kitchen.
The tenants had to move out urgently. Their lives were thrown into disarray. They say: We were suddenly forced into a frantic search for another property. The uncertainty of our living situation cast a shadow over every aspect of our lives. Both concerned about each other’s wellbeing during all of this. Worried about what we were going to do, where to go and at one point we considered living in our car. Not forgetting the affect this has had on our jobs, having to take additional time of work with back-to-back viewings for another rental which is ongoing. Devastatingly, we ended up having to be separated from each other for a period. At present, with our belongings in storage, we are still looking for a home and are currently in temporary accommodation in a commercial environment, living out of suitcases, with a mattress on the floor, using a laundromat. This is and has had a profound impact on our lives, both emotionally and professionally. We feel upset, angry and confused on how the owners can allow anyone to live in those conditions. We were and are under an immense amount of stress, especially while trying to find places.

Did the landlord fail to provide the premises in a reasonable condition?

Legal principles

Landlords must provide the premises in a reasonable state of cleanliness and in a reasonable state of repair.
Under s 45(1) of the Residential Tenancies Act 1986 relevantly provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) provide the premises in a reasonable state of cleanliness; and (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 1 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 2 “...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 might be...”
Tenants have a duty to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repair. 3 However, Landlords also have an obligation to repair things that are apparent from observation: 4 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation...
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 5 1 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 2 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 3 RTA, s 40(1)(d). 4 See n 2. 5 RTA, s 45(1A) and Schedule 1A.
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.

Did Mr Hey commit the unlawful act intentionally?

A central issue in this case was whether Mr Hey knew about the mould prior to the tenancy.
Mr Harris says the likely cause of the mould was that the premises’ dishwasher had leaked into the affected area several years before hand. The leak had been fixed at the time, but the residual moisture infiltrated the wall behind the dishwasher. Over the years, the damp led to black mould infesting the gib on both sides of the affected wall, wall cavity, laundry cupboard, and some of the kitchen cabinetry
The tenants’ photographs show that by merely opening the laundry cupboard, crouching, or bending down and looking into the cupboard one would see that black mould had infested the rear wall of the cupboard. The gib there is not only mouldy but is crumbling, leaving a large hole in the gib. Anyone observing this would realise that major work was necessary.
Mr Harris says he first became aware of the condition of the cupboard on 19 June 2024, when he carried out a delayed pre-tenancy inspection with the tenants. He promptly issued a work order for the issue to be investigated and fixed. He only became aware that the problem was even worse than suspected on 22 June 2024 when the tenants reported they had pulled out the dishwasher and found the kitchen wall was also severely affected by mould.
When questioned about Prestige’s knowledge of the mould prior to the tenancy, Mr Harris says Prestige were simply unaware of it. The previous tenancy had lasted for about five years. Another Prestige employee had done an end-of- tenancy inspection which had not found the mould. A photograph of the laundry cupboard from that inspection was taken from an angle about one metre away from the cupboard and from about a metre above it. It does not show any mould because one would need to crouch or bend down to see the mould.
A puzzling feature of the case is that the cupboard has new-looking PVC piping and there is a large plastic container below the PVC piping. These facts suggest that there have been recent problems with the laundry sink. Along the same lines, the mould-infested gib at the back of the cupboard shows signs of having recently been worked on. The crumbled gib has been cleaned away and the edges of the gib hole look to be freshly created as if someone had pulled affected gib off.
Mr Hey says he did not go into the cupboard and was also unaware of the problem. He lives next door, only five metres away in a much larger house. He says, if he had known about the damage he would have got it fixed in part because it would not make sense to allow his asset to be destroyed by mould. Naturally, it would be in his own best interests to arrest the problem before it worsened. Also, living so closely to his tenants he would not want them to be living in unhealthy conditions.
Mr Hey was adamant that he had not had any work done to the laundry sink or cupboard at any time. I found his evidence plausible. It tallies with Prestige’s exit inspection of the premises which did not note any issues with the laundry; and it tallies with Prestige renting the premises out without informing the landlord or the tenants of any problem.
The tenants pointed to other areas of the premises that showed water damage near a skylight at the top of the stairs, in a garage wall, and in the living room. However, I am satisfied that the damage is historic and has been repaired. The repairs and paintwork look cosmetically “agricultural”, but I am not satisfied that the repairs were ineffective or incomplete.
The new PVC piping and plastic tray are a mystery. There is a likely explanation for them, however. It is possible the previous tenants became aware of a leak under the laundry tub. Worried about being held liable for the damage, the previous tenants cleaned the worst of the gib damage and installed the PVC piping. When the exit inspection report came up “clean”, the previous tenants would have breathed a sigh of relief and kept mum.
I hasten to say, I do not find this narrative to be the case. However, it is a plausible alternative scenario.
I do find that I am not satisfied on the balance of probabilities that Mr Hey did this work or knew about it.
It follows, I am not satisfied that Mr Hey committed the unlawful act intentionally. Conclusion
I am satisfied on the balance of probabilities that the landlord failed to provide the premises in a reasonably clean condition or in reasonable state of repair.
Exemplary damages are not available for the unlawful acts because I am not satisfied that the landlord committed the unlawful acts intentionally. Remedies
Exemplary damages are not available, but compensatory damages are available.
The tenancy being a disaster, with the landlord failing to provide premises that were habitable, the landlord must reimburse the tenants all of their rent.
The landlord must also reimburse the tenants for their moving-out costs.
I accept the tenants incurred storage costs. The costs to store their belongings including one vehicle were $740.00 per month. I allow five weeks, which I consider was sufficient time for the tenants to have found suitable alternative accommodation.
One of the tenant’s father’s companies provided the moving services and storage. Commonly, parents of young people pay for their children in such circumstances. However, I accept the tenants’ evidence that they have paid for the services.
The tenants ask to be reimbursed for personal mileage and for time off work to obtain alternative accommodation. Obtaining alternative accommodation is not in the nature of a business expense. I do not allow mileage at business rates or time-in-lieu of wages. However, I allow $300.06 for the cost of petrol and oil to travel to prospective tenancy addresses. General damages
The tenants suffered emotional harm in the form of stress due to having to leave the premises suddenly and anxiety from the extreme inconvenience of having to find a new home in disrupted living circumstances. The emotional harm is significant and capable of being compensated for by way of general damages.
General damages are compensatory damages. The Tribunal has the power to award compensation under s 77(2)(n) of the RTA, which provides the Tribunal may order: such sum by way of damages or compensation as the Tribunal shall assess in respect of the breach of any ... provision of this Act
In Palmer v Housing New Zealand (No 2) 6 , the Tribunal held that when assessing the quantum of general damages, the Tribunal must consider the following factors: a. The nature of the breach; b. The duration of the breach; and c. The effect of the breach on the party.
The Tribunal’s general damages awards have historically been low. In Birch v Otautahi Community Housing, Neave DCJ described the Tribunal’s awards for emotional harm damages as “not particularly generous” and “fairly conservative”. 7 In that case, the tenant had returned to her unit to discover contractors had entered her apartment without her permission to do asbestos removal work. The landlord who was carrying out asbestos removal in many apartments in the building had mistakenly failed to give the tenant notice of the entry.
Judge Neave found the Tribunal’s award of $200.00 of emotional harm damages for the unlawful entry was “close to being derisory”. He substituted an award of in the sum of $2,000.00 finding “it was a significant intrusion on [the tenant’s] rights”.
In Sun v Kang, Judge David J Clark found in the assessment of general damages in respect to another unlawful entry case: 8 [69] Ultimately any assessment of damages will be based on all the circumstances of the case including (but not intending to make a prescriptive list) the intentions of the landlord; whether there was a lawful purpose which sat behind the conduct; the conduct of the tenant; the effect on the tenant; whether the conduct was ongoing, whether there were any aggravating or mitigating factors from both the landlord or tenant.
In that case His Honour ordered $3,000.00 for the landlord unlawfully entering the premises on two occasions.
In this case, the landlord’s intentions were blameless and there was a lawful purpose behind ending the tenancy. The impact on the tenants was serious. They had to live apart and were anxious they might have to live in a car at one point. They had to endure living in unsafe premises for two weeks.
I assess the tenants’ emotional harm at $800.00 each. Non-publication 6 Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993. 7 Birch v Otautahi Community Housing [2020] NZDC 17667. 8 Sun v Kang [2023] NZDC 24786 at [69].
The tenants seeks an order for non-publication of their names and identifying details.
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. 9
The tenants have succeeded in the proceedings. Publication is not otherwise in the public interest or justified by the tenant’s conduct or any other circumstances of the case.
The Tribunal orders non-publication.

Tenancy Tribunal case 4939734 — Mould & damp at 20 The Close, Greenhithe, Auckland 0632

At a glance

Tenancy Tribunal case 4939734 — Mould & damp at 20 The Close, Greenhithe, Auckland 0632

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to provide the premises in a reasonable condition?

Did Mr Hey commit the unlawful act intentionally?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord fail to provide the premises in a reasonable condition?

Did Mr Hey commit the unlawful act intentionally?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions