What was Tenancy Tribunal case 4945818 about?

The tribunal order states: The tenancy of [The tenant/s] at 107 Abel Smith Street, Aro Valley, Wellington

How much money was awarded in case 4945818?

Property Damage: $2,500.00 awarded to tenant; Property Damage: $3,300.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4945818?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4945818?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10963088-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4945818 about?

The tribunal order states: The tenancy of [The tenant/s] at 107 Abel Smith Street, Aro Valley, Wellington

How much money was awarded in case 4945818?

Property Damage: $2,500.00 awarded to tenant; Property Damage: $3,300.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4945818?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4945818?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10963088-Tribunal_Order_Redacted.pdf.

107 Abel Smith Street, Aro Valley, Wellington 6011 Tenancy Tribunal Case 4945818 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4945818 — net $5,827.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failing to repair shub	$2,500.00	Failing to repair shub
Exemplary damages: Breach of work orders	$3,300.00	Breach of work orders
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,827.00
Total payable by Landlord to Tenant	$5,827.00

Claims and awards in Tenancy Tribunal application 4945818 — net $5,827.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failing to repair shub	$2,500.00	Failing to repair shub
Exemplary damages: Breach of work orders	$3,300.00	Breach of work orders
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,827.00
Total payable by Landlord to Tenant	$5,827.00

Order

The tenancy of [The tenant/s] at 107 Abel Smith Street, Aro Valley, Wellington 6011 is terminated, and possession is granted to Ganesh Superannuation Fund Limited at 11.59pm on Sunday 17 November 2024.
Ganesh Superannuation Fund Limited must pay the tenants $5,827 immediately as calculated in the table below

Reasons

Both parties attended the hearing with all tenants present and Mr Daniel Reeve representing the landlord.
Mr Reeve is employed or contracted by Ganesh Superannuation Limited (Ganesh) to manage the company’s tenancies. He is named as agent for Ganesh on the tenancy agreement.
The tenants have applied for termination of the tenancy for breach of the landlord’s obligations plus compensation and exemplary damages for failing to carry our repairs and failing to comply with previous work orders made by the Tribunal under application 4804404 by order dated 15 May 2024 (“the May decision”). The law
Under section 45(1)(b) Residential Tenancies Act 1986 (RTA), a landlord must provide and maintain the premises in a reasonable state of repair.
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 RTA.
The landlord’s obligations under s45(1)(b) RTA are to investigate and repair a defect brought to their attention within a time frame which is reasonable in the circumstances, and as to what that time is depends on the gravity of the problem but also on the objective attempts by the landlord to investigate and put right whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
Under section 78(1)(e) RTA the Tribunal may make a work order against the landlord requiring the landlord to carry out maintenance or repairs, and under s78(2) a. shall where the order is made otherwise than by consent; and b. may where the order is made by consent,-- also make an order for payment of money under section 78(1)(d) as an alternative to compliance with the work order.
Breaching a work order without reasonable excuse is an unlawful act, for which exemplary damages may be awarded up to a maximum of $5,000.00. See section 108(2A) and Schedule 1A RTA. Background facts
The Tribunal made various work orders in the May decision as follows: a. Order 3c regarding a crack inside the bath/shower unit (“shub”) to complete all necessary repairs including replacement of the unit if necessary by 5 June 2024. This work has not been completed; and, b. Order 3d to repair the leak causing water ingress above the window of bedroom 5 and repair and make good the exposed hole in the wall above the window by 5 June 2024. This work was not completed until 17 June 2024; and c. The Tribunal also made an order requiring the landlord to pay $100/week to the tenants for every week or part week that any one of the work orders is outstanding, which may be offset against rent; and d. The Tribunal ordered that both parties were granted a period until 15 July 2024, within which they may request that the application be brought back to the Tribunal and the matter will be re-opened, should issues arise which require further orders such as: failure by the landlord to complete the work by the compliance dates such that the tenants wish to engage contractors to complete the work or seek other remedies such as termination of the tenancy; or should the landlord require an extended compliance date for the works due to the scope of the works required and/or availability of tradespersons.
It is accepted that the tenants continued to receive compensation from the landlord by a rent reduction of $266.50 until 17 June 2024 while bedroom 5 was unable to be used. In addition, as provided in the May decision, the tenants reduced their weekly rent by a further $100 while the work orders remained outstanding. For the period to 20 October 2024, they have reduced 19 weekly payments of rent by $100, being a total rent reduction/compensation of $1,900.
It is not disputed that the landlord instructed contractors to investigate the shub and carry out necessary repairs/replacement. At first, it was suggested that the shub be repaired with an acrylic coating. However, on 22 May 2024 the contractors advised that the shub could not be repaired in this manner and should be replaced. On 27 May 2024 Mr Reeves advised the tenants that he was discussing other options with the contractors. On 14 June 2024 Mr Reeve advised the tenants that he was having difficulty finding a replacement unit for the existing shower; he had contacted three other plumbers for options and would report back to the tenants. However, the landlord has taken no further steps to replace the shub and has not responded to further inquiries from the tenants on this issue since then. Mr Reeve accepts that the landlord has not complied with the work order. When asked why the landlord has not done something to resolve the issue, he was unable to provide an adequate explanation.
Meanwhile, due to the crack in the shub, the tenants have been unable to use it. As a result all five tenants have to use one ensuite shower at the premises which has caused significant inconvenience and a loss of amenity. They say they would not have entered into a tenancy of these premises, if they had known that the five tenants would have to share one ensuite shower.
The tenants have become increasingly frustrated with the landlord’s failure to complete the work in the work orders and general unresponsive behaviour regarding this and other issues since the tenancy began (also highlighted in the May decision).
Since the May decision, the tenants have raised two further maintenance issues with the landlord that have not been addressed. On 22 May 2024 the tenants reported to Mr Reeve that there was a problem with rodents in the wall of the third bedroom. Mr Reeve advised on 24 May that he had laid rat poison. Subsequently, the tenants have advised Mr Reeve on numerous occasions that they can still hear rats in the walls but Mr Reeve has not responded nor taken any further steps to address the problem. He says that he was unaware it was still a problem but I am satisfied on the evidence that the tenants have advised him that it is a continuing the issue and he has not addressed it.
The tenants also reported to Mr Reeve on 22 September 2024 that the dishwasher has stopped working. Mr Reeve has not responded to their message and has not taken steps to investigate and repair the dishwasher. He acknowledged this at the hearing and said he will arrange a time to investigate.
However, the rodent and dishwasher claims were not raised in the tenants’ application and were only mentioned at the hearing. Therefore, I cannot consider any claim for compensation or exemplary damages for those matters.

Has the landlord breached work orders?

I am satisfied on the evidence that the landlord failed to repair the leaky window in bedroom 5 by 5 June, as specified in the work order, but it was fixed by 17 June, 9 days later.
I am also satisfied on the evidence that the landlord has failed to repair or replace the shub in the bathroom by 5 June 2024 as specified in the work order and it still remains outstanding.
However, the landlord has complied with the order which awarded compensation to the tenants of $100/week for every week that the work orders remained outstanding by deduction from the rent payable. This was not an alternative money order under section 78(2) but rather an incentive for the landlord to get the work done and some compensation to the tenants if the work was not done by the due dates. Given that Mr Reeve consented to the orders, the Tribunal was not required to make an alternative money order under s78(2).
Furthermore, pursuant to section 78(2AA) RTA, it is not open to the Tribunal to make an alternative money order in relation to a failure to comply with any health or safety legislative requirement. Some of the work orders related to leaks which is a health and safety issue and a breach of the Housing Improvement Regulations 1947 which provides in regulation 15 that every house must be free from dampness.
Therefore, while the landlord has paid some compensation for failing to complete the work orders, the compensation was not an alternative to doing the work. I also prefaced in the May decision that if the landlord did not complete the work by the compliance dates the tenants may ask the Tribunal to re-open the matter and seek further remedies and they have done so.
The tenants have not asked for further compensation in relation to the leaky window acknowledging that the landlord reduced the weekly rent payable for this room by $266.50 while it could not be used.
The tenants seek compensation for failure to provide a useable shub of $200/week. They say that this is the approximate difference in rent between a one bathroom and two bathroom flat for five people. They say that they would never have rented a flat with one bathroom for five tenants. They say that having to share the remaining shower ensuite between five people has caused them significant inconvenience and loss of amenity for which they have been paying valuable rent. Compensation
The tenants are entitled to compensation for the landlord’s work order breaches. When considering whether to impose compensation, and how much, it is relevant to consider the extent to which the landlord has breached their obligations and the impact on the tenants. It is also a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in but for the breach. Liability exists for foreseeable losses flowing from the breach.
Having regard to all, relevant factors I award compensation of $2,500 for the failure to repair/replace the shub. To give some guidance as to how I reached this figure, it equates to a weekly rent reduction of approximately $200 per week for 24 weeks from 6 June 2024 to 17 November 2024 (when the tenancy is to end) which is a total of $4,800. However, the following deductions must be applied: Compensation/rent reduction already paid of $1,900, and an anticipated rent reduction of $400 for 4 weeks from 21 October to 17 November 2024, when weekly rent will continue to be paid at the reduced rate of $1,210, in accordance with the May decision. Exemplary damages
The landlord is in breach of the work order to repair the leaky bedroom window by 5 June 2024 (although it was done by 17 June), and to repair or replace the shub by 5 June 2024, which is still outstanding. The landlord has not provided a reasonable explanation as to why they have still not resolved the shub issue. Therefore, I am satisfied that the landlord has committed an unlawful act under s108(2A) RTA in relation to this issue.
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) RTA.
The District Court has said the requirement of intention is not about whether the party was aware they were breaching the RTA. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do. 1
Intention is proved where the party turns their mind to the unlawful act and deliberately sets out to commit the act. It is unnecessary to prove that the party intended to act unlawfully, it is enough that they intended to commit the act which is in fact unlawful. The same principle applies where the party fails to carry out a legal requirement. Even if the party is unaware of the particular obligation they have failed to perform, ignorance of the law is no defence. They are deemed to know the law, and therefore failure to perform the obligation is considered intentional. Also, if the party is wilfully blind to the factual circumstances that give rise to an unlawful act, this may also be sufficient to prove they acted intentionally.
I am satisfied that the matter of intention is proved in this case. Mr Reeves is a professional property manager acting for Ganesh; he knows or ought to know his obligations under the RTA to maintain and repair. In this particular case, the terms of the work order were clear and the landlord has failed to comply with them.
It is of significant interest to Tenants and the Public that landlords comply with their obligations under the RTA. I award $3,300 in exemplary damages, which is 66% of the maximum available award of $5,000. The higher award reflects the seriousness of the landlord’s failure and recognises that this is not the first breach of this kind by the landlord in relation to this tenancy.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) RTA. 1 Parton v Fifita TT 1815/00, DC Auckland,1/5/2001
Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
In this case the landlord has failed to comply with a Tribunal work order by the compliance date which is a breach not capable of remedy. Given that it was a Tribunal order, it would not be reasonable to require the tenants to file a 14-day notice for this particular breach.
While all except one work order was completed, the outstanding order is significant and it does not appear that the landlord intends to fix the shub any time soon. The ongoing breach, inconvenience and loss of amenity for which the tenants are paying valuable rent is to the extent that I find it is just and equitable to terminate the tenancy. Mr Reeve also appeared to accept this was the appropriate outcome.
The tenancy will end at 11.59pm on Sunday 17 November 2024.
As the tenants have substantially succeeded with their claims, they are entitled to suppression of their names and identifying details and reimbursement of the filing fee.

Tenancy Tribunal case 4945818 — Exemplary damages at 107 Abel Smith Street, Aro Valley, Wellington 6011

At a glance

Tenancy Tribunal case 4945818 — Exemplary damages at 107 Abel Smith Street, Aro Valley, Wellington 6011

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord breached work orders?

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord breached work orders?

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions