What was Tenancy Tribunal case 4946534 about?

The tribunal order states: The application for rehearing is dismissed.

How much money was awarded in case 4946534?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4946534?

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

Where can I read the official tribunal order for case 4946534?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11226644-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4946534 about?

The tribunal order states: The application for rehearing is dismissed.

How much money was awarded in case 4946534?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4946534?

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

Where can I read the official tribunal order for case 4946534?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11226644-Tribunal_Order_Redacted.pdf.

Unit/Flat 3, 40 Strong Street, Saint Johns, Auckland 1072 Tenancy Tribunal Case 4946534 — Mould & damp

Order

The application for rehearing is dismissed.
The stay of proceedings ordered on 3 December 2024 is lifted.
The Tribunal Orders continues suppression of the tenant’s name and identifying details.

Reasons

Both parties attended the hearing which was held by teleconference.
On 13 November 2024 the Tribunal made an Order that the landlord pay the tenant $15,358.00 in compensation and exemplary damages.
The Order followed a face to face hearing during part of which the landlord was represented by counsel. A continuation of the hearing by teleconference was directed, to give the landlord opportunity to fairly respond to the claim raised by the tenant at the first hearing, that the landlord had breached its obligation to provide the premises in a reasonable state of cleanliness and repair.
The landlord has applied for a rehearing on grounds that are addressed individually below.
Section 105(1) Residential Tenancies Act 1986 provides that the Tribunal has the power to order a rehearing where “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”.
Usually the party applying for the rehearing must show that something went wrong with the Tribunal’s procedure, for example, that they did not receive notice of the hearing or they were not able to properly present their case. A rehearing may also be granted where there is new evidence that was not reasonably available at the first hearing, if it could have affected the outcome.
The District Court has held that if the Tribunal was simply wrong in its findings of fact, or its application of the law, this is not sufficient to establish a miscarriage of justice: a rehearing is not an alternative to an appeal. Furthermore, a rehearing will not be granted just because a party is unhappy with the decision, or to give them a second opportunity to present their case. Ground 1 – The Order incorrectly made awards referencing s.45(1)(a), for issues that did not relate to the cleanliness of the premises when provided to the tenant.
The landlord is correct in pointing out that the compensation table in the Order records an award for compensation and exemplary damages for breach of section 45(1)(a). Both s.40(1)(a) and 40(1)(b) should have been referenced.
The Order notes the tenant’s claim that “The landlord failed to meet its obligation to provide and maintain the premises in a reasonable state of cleanliness and repair” ie. that it breached a. 45(1)(a) and (b)
The findings in the Order reference both of those provisions. I am not persuaded that failure to refer to s.51(1)(b) in the compensation table, means the landlord did not have fair opportunity to be heard on that claim or constitutes a serious wrong or miscarriage of justice.
The evidence the landlord says was not given appropriate weight was noted in the order and taken into account. Ground 2 - Section 45(1)(a) exemplary damages should not have been awarded
The landlord’s submission is that the award of exemplary damages does not adequately account for delays in the landlord meeting its obligations that were outside its control and that exemplary damages should not be awarded because the impact on the tenant was covered by the award of compensation.
I am satisfied that the Order correctly identified the s.109(3) criteria that the Tribunal is required to take into account in considering an award of exemplary damages. The evidence provided by the landlord concerning the steps taken to remedy the breaches was considered.
Unlike multiple punitive awards for the same conduct, which are prohibited by s. 109E, compensatory awards and awards of exemplary damages are not mutually exclusive. One is intended to compensate the other to punish. The Order notes, “In considering whether an award of exemplary damages would be just, I also take into account that compensation has been awarded and that exemplary damages are a punitive (ie. punishment focused) rather than compensatory award.” Ground 3 - Exemplary damages should not have been awarded for breach of s.45(1)(bb)
The landlord submits that the Order overlooks that the delay in installing complaint insulation was unintentional, because while the original property manager did not take steps he knew was required, when the new property manager became aware of the situation, the necessary work was done. That suggests a view that the landlord is not responsible for the failures of its original property manager.
The Order sets out in detail the landlord’s evidence about the HH compliance issue. A different finding was made about the intentionality of the breach.
The finding does not reflect any inability for the landlord to have its evidence about the issues considered and I do not find it risks a substantial wrong or miscarriage of justice. Ground 4 – no additional rent abatement should have been ordered
The landlord submits that the Order failed to consider that compensation had already been paid to the tenant, that a rent abatement had been agreed and that the landlord had agreed to a shorter notice period.
Those factors are noted in the Order, except the landlord’s assertion that the rent abatement offered was an agreement – which would not be effective if representing a waiver of the tenant’s entitlements (s.11(3)).
The Order finds that an abatement of 25% would have been appropriate from the start of the period during which that part of the premises became uninhabitable.
The landlord is entitled to a different view about that. Again, I am not persuaded that relevant evidence that was unavailable or overlooked or that the landlord was unable to fairly address the issue at the hearing. Ground 5 – the award of general damages was excessive
The landlord’s submission is that the award of exemplary damages is significantly out step with comparable awards by the Tribunal. It says that the Order does not set out the criteria against which the award was made, leading to a concern that the principles for awarding general damages were incorrectly applied.
The landlord is right that the Order does not contain a discussion of the principles on which awards of general damages should be considered or of how the award was calculated. It should have.
I have considered the authorities provided by counsel for the landlord and other decisions.
In Birch v Otautahi Community Housing Trust 1 the Court noted that: “[35] General damages are for ‘pain and suffering’ or ‘emotional distress’ “[36] Then Court in Palmer v Housing New Zealand (No) 2 2 held that when assessing the quantum of general damages, the Tribunal must take into account: a. The nature of the breach b. The duration of the breach c. The effect of the breach on the party.”
In reaching its decision in Birch, the Court noted that: “[90] The assessment of damages which do not relate to recompense of actual financial loss, is a difficult exercise. It is also clear that the awards of damages in this context are not particularly generous.” The Court raised the award of exemplary damages for an unlawful though unintentional entry Into the tenant’s home, from the $200.00 awarded by the Tribunal, to $2,000.00.
The landlord has referred me to Tenant v Singh 3 in which the Tribunal awarded $4,500.00 as general damages for emotional harm caused by the landlord unlawfully ending the tenancy, having “...required the tenants to move without delay, giving the tenants the opportunity to urgently find somewhere else to move to.”
In Tenant v Ezy Rentals NZ Limited 4 the Tribunal awarded general damages of $4,500.00 for the landlord cancelling a tenancy agreement before the tenant moved in. The Adjudicator in that decision, noting that the compensation bands referred to in Singh, “are probably not attuned to Otutahi” suggested that the bands that might help the Tribunal’s assessment in that case were: “a. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $2,000.00. 1 [2020] NZDC 17667 2 Auckland TT 1278/92, 25 August 1993 3 [2022] NZTT 4315255 4 [2022] NZTT 4323927 b. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $2,000.00 to $3,000.00 c. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of over $3,000.00”
In Tenant v Barfoot & Thompson Limited 5 general damages of $2,500.00 were awarded in circumstances somewhat similar to this case, where the tenant was faced with ongoing work to the premises while in occupation.
The purpose of an award of general damages is to compensate the party for non- financial loss – per Birch (above), for pain and suffering or emotional distress.
In each case the assessment of what general damages are appropriate will be specific to the fact of the case.
In terms of Palmer (above)– endorsed by the Court in Birch, the considerations are: “a. The nature of the breach b. The duration of the breach c. The effect of the breach on the party.”
The findings in the Order include: “58. The tenant and his family however are the persons who, through no fault at all of their own, have principally borne the consequences of the flooding event, against which the owner/ landlord was insured.
The tenant has given telling evidence, supported by photographic and medical evidence, of the toll this situation has taken on his family, in particular his daughter who has had significant and ongoing health issues.
The evidence provided satisfies be that those issues are, if not entirely caused, at least very substantially contributed to, by living in a damp effect at home over an extended period.”
The award of general damages made against the landlord is significant. The Order ought to have more clearly spelled out the considerations applied by the Tribunal in assessing the award of general damages.
I am satisfied though that the factors taken into account, identified above, were the relevant considerations. 5 [2002] NZTT 4328716
While the landlord is of the view that those factors have been weighted incorrectly and harshly, in arriving at the award of general damages, I do not find that establishes the grounds for a rehearing being ordered.
To quote from Singh (above): “In Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language set a high standard: [18] ... They most obviously apply ... to cases of procedural error eg a hearing which takes place in the absence of a party who has not been given notice of it; the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may also encompass the discovery of new and important evidence not previously available. [19] In my view, however, the words do not cover a complaint that the Tribunal was merely mistaken or wrong in its findings of fact or in its application of the law. There are two reasons for this. First the strength of the language in s 105 is such that something more than a mere wrong decision must be shown. The section does not speak of a decision being wrong, but of a substantial wrong or miscarriage of justice occurring. This implies obvious injustice, not merely an erroneous decision. As noted by Judge Christiansen Loh v Puri [2019] NZDC 1993: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.”
The Order was made following hearings at which both parties appeared and for part of which the landlord was represented by counsel. Full opportunity was given to both parties to provide evidence in support of their positions. I am not persuaded that evidence was wrongly excluded or rejected.
I do not find that the grounds for a rehearing, in terms of those authorities, are made out.

Tenancy Tribunal case 4946534 — Mould & damp at Unit/Flat 3, 40 Strong Street, Saint Johns, Auckland 1072

At a glance

Tenancy Tribunal case 4946534 — Mould & damp at Unit/Flat 3, 40 Strong Street, Saint Johns, Auckland 1072

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