What was Tenancy Tribunal case 4962553 about?

The tribunal order states: MeiSheng ZHU must pay [The tenant/s] $5,821.00 immediately, calculated as

How much money was awarded in case 4962553?

Property Damage: $200.00 awarded to tenant; Property Damage: $2,198.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4962553?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4962553?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11046341-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4962553 about?

The tribunal order states: MeiSheng ZHU must pay [The tenant/s] $5,821.00 immediately, calculated as

How much money was awarded in case 4962553?

Property Damage: $200.00 awarded to tenant; Property Damage: $2,198.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4962553?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4962553?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11046341-Tribunal_Order_Redacted.pdf.

Unit/Flat 2, 38 Gulf View Road, Murrays Bay, Auckland Tenancy Tribunal Case 4962553 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4962553 — net $5,821.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond not lodged	$200.00	Bond not lodged
Exemplary damages: Section 45	$2,198.00	Section 45
Bond refund	$3,396.00	Bond refund
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,821.00
Total payable by Landlord to Tenant	$5,821.00

Claims and awards in Tenancy Tribunal application 4962553 — net $5,821.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond not lodged	$200.00	Bond not lodged
Exemplary damages: Section 45	$2,198.00	Section 45
Bond refund	$3,396.00	Bond refund
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,821.00
Total payable by Landlord to Tenant	$5,821.00

Order

MeiSheng ZHU must pay [The tenant/s] $5,821.00 immediately, calculated as shown in table below:
All remaining claims are dismissed.

Reasons

Both parties attended the hearing. The landlord had the assistance of a mandarin interpreter. Background
A tenancy agreement was signed by the parties on 5 July 2024. The tenancy was to commence on 8 July 2024 and was for a fixed term due to end on 7 July 2025.
The tenant uplifted the keys for the premises on 7 July 2024. When he entered the premises, the tenant noticed that the carpet smelt of cat urine and he asked the landlord to clean the carpet, but the landlord refused.
On the day the tenant started moving in an internal door locked and the tenant had not been provided with a key. The tenant contacted the landlord. On 10 July 2024 the landlord attended and unlocked the door.
After the landlord left the tenant said he noticed a lot of mould on the carpet on all three levels of the premises and on the blinds.
The tenant said that he asked the landlord about a Healthy Homes report, but the landlord refused for a third party to carry out a report.
The tenant asked to cancel the contract due to the issues that had arisen, but the landlord refused.
The tenant moved out of the premises and handed the keys back to the landlord on 11 July 2024. Applications
The tenant applied for refund of the bond, a claim relating to the Healthy Homes standards, compensation, and exemplary damages.
The landlord applied for rent arrears and compensation for damage. Tenant application
Prior to moving in the tenant paid the landlord two weeks rent in advance amounting to $1,698.00 and the bond of $3,396.00.
[The tenant/s] claims 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.
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.
The landlord did not lodge the bond and it has not been returned to the tenant. I find they have committed an unlawful act.
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.
The landlord said that he did not lodge the bond because the tenant asked to cancel the agreement after three days. The landlord said he knew that the bond should be lodged within 23 working days, but he didn’t lodge it and is using the bond money to cover his losses. The landlord said that he did not agree to cancel the agreement and the tenant did not sign the bond lodgement form.
The tenant moved out of the premises and returned the keys to the landlord on 11 July 2024. The landlord has retained the bond since the tenancy has ended.
The reasons given by the landlord for not lodging the bond are not accepted. The landlord knowingly retained the bond and failed to lodge it.
It is in the public interest for landlords to lodge bond money. I consider that a award of exemplary damages of $200.00 is reasonable in the circumstances.
[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 the premises in a reasonable state of cleanliness and 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 Residential Tenancies Act 1986.
The landlord did not provide the premises in a reasonable state of cleanliness. I find they have committed an unlawful act.
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.
The tenant had complained of carpet that smelt of animal urine. There was also mould under the carpets. The blinds were mouldy and clearly had not been cleaned before the tenancy began.
Initially at the hearing the landlord said that there was no urine smell. Later he said that the previous tenant had a small cat in the room identified as smelling of cat urine. The landlord said that it was not a strong smell and instead it was a little bit of smell. He also said that the smell was because no one had been there to let in fresh air.
At the hearing the tenant produced a video of the subfloor from under the house. The video shows that the subfloor had rotted away, there was significant mould and there was no ground moisture barrier.
The tenant produced photographs of wall cracks and plaster coming away from the wall. The tenant said that the carpet was wet and mouldy in three areas being two areas in the living room and one in the small bedroom. The blinds were mouldy in the kitchen, living room and three of the bedrooms. In the bedroom on the ground floor the curtains were black with mould.
I note that the tenancy agreement says that the landlord has discounted the rent from the market rental because the tenant could not use the top floor shower and middle floor bath and there were some dents and marks on the old carpet.
The tenant said that he was told not to use the top floor shower and middle floor bath because they were leaking. While the tenant not using these may result in a loss of amenity for the tenant and prevent further deterioration of these areas, it is likely to also add dampness and mould to the living environment.
The tenant said that his family did not move into the premises because of the condition it was in and because his wife has a chronic kidney disease, and his children suffer from asthma.
In relation to the mould the landlord said that he didn’t notice it, but it was not serious and not a big job. He said it just needed a further clean and dry. He said the mouldy blinds were due to no ventilation.
I am satisfied that the landlord failed to provide the premises in a reasonable state of cleanliness. Further, he refused to clean it when the issue of cleanliness was raised by the tenant. Due to the impact on the tenant an award of exemplary damages is warranted.
I have calculated the award by adding the amount of rent in advance paid by the tenant being $1698.00, with $500.00 to take account of the inconvenience caused to the tenant.
The tenant claims in relation to the Healthy Homes standards. Following the hearing the landlord provided part of a report from 2022 as referred to below. In relation to Healthy Homes there is a timeframe for compliance depending on when a tenancy commences. For this tenancy the landlord had 120 days from the commencement of the tenancy to comply with the Healthy Homes standards. As this tenancy ended before the compliance date being 6 November 2024, the landlord is not in breach. The tenant’s claim in respect of the Healthy Homes standards is dismissed.
The remaining issue is whether the tenancy agreement between the parties can be cancelled as claimed by the tenant.
Section 78(1)(h) Residential Tenancies Act 1986 provides that the Tribunal may make any order that “the High Court or the District Court may make under any enactment or rule of law relating to contract”. This includes any contractual principle relating to contract conditions, provided the rule is not inconsistent with the provisions of the RTA.
The Tribunal must also have regard to s 85(2) RTA, which provides: The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or
The tenant claims that during the inspection on 5 July 2024 the landlord said that there were damp marks on the carpet in the dining room but withheld the fact that there was a water leak and mould underneath the carpet.
The photographs produced show that there is a panel of the wall that has been removed where the carpet is wet and mouldy, and the subfloor is wet in parts and watermarked in others. The skirting board is swollen from water ingress. The wall panel is where one of the bathrooms backs on to that room. The landlord would have been aware of the water ingress as work has been carried out in that area. I note the panel placed on the wall has not been painted.
The landlord did not take any steps to address the urine smell, the mouldy carpet or the mouldy blinds either before the tenant moved in or when the issues were raised by the tenant. The premises were not in a state for the tenant and his family to move in and live.
Section 37 Contract and Commercial Law Act 2017 provides that a party to a contract may cancel it if, the party has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made by or on behalf of another party to the contact.
I am satisfied that the landlord knowingly misrepresented the condition of the premises to the tenant. The tenant had communicated to the landlord that the contract was cancelled and at the hearing the landlord acknowledged that the tenant asked to cancel the contract after three days as that was a reason given for not lodging the bond, although the landlord did not agree to cancel the contract. On the evidence I am satisfied that the tenancy agreement signed by the parties was cancelled.
Even without the misrepresentation the premises were not habitable. I consider that habitability is an essential term in a residential tenancy. Section 37 also states that a party to a contract may cancel it if a term in the contract is breached by another party to the contract. Landlord application
At the end of the hearing the landlord was directed to file evidence of Healthy Homes compliance, photographs date stamped from just prior to commencement of the tenancy, an insulation statement and a rent summary by the end of 30 October 2024.
The landlord filed four pages of a 26-page Healthy Homes report dated 14 October 2022. On the pages produced the report stated that there was non- compliance in relation to the underfloor insulation and the drainage and guttering. No evidence was filed to show that the premises was fully compliant by the date of commencement of the tenancy. It is relevant that the landlord only filed part of this report and failed to provide the tenant with the report when the issue of Healthy Homes was raised. The tenancy agreement also does not include the statement required by section 13A(1CA) Residential Tenancies Act 1986 that the landlord will comply with the Healthy Homes standards.
The landlord filed photographs, but these were not date stamped. The photographs produced showed that the carpet was in a bad state.
The landlord applied for rent arrears. As the tenancy was for a fixed period the landlord seeks rent arrears to 9 October 2024 which is the day before a new tenancy commenced. As the tenancy agreement was cancelled due to misrepresentation, I conclude that no rent arrears are owed to the landlord. That claim is dismissed.
The landlord applied for compensation. The compensation was in relation to costs incurred by the landlord in finding and securing a new tenant. The landlord is not entitled to compensation in the circumstances given the misrepresentation and cancellation of the agreement. That claim is dismissed.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. For the same reason the tenant’s name is suppressed.

Tenancy Tribunal case 4962553 — Exemplary damages at Unit/Flat 2, 38 Gulf View Road, Murrays Bay, Auckland

At a glance

Tenancy Tribunal case 4962553 — Exemplary damages at Unit/Flat 2, 38 Gulf View Road, Murrays Bay, Auckland

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions