What was Tenancy Tribunal case 4979350 about?

The tribunal order states: Street Smart Property Management Limited As Agent For Timothy Shaun

How much money was awarded in case 4979350?

Compensation: $632.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4979350?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4979350?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10994826-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4979350 about?

The tribunal order states: Street Smart Property Management Limited As Agent For Timothy Shaun

How much money was awarded in case 4979350?

Compensation: $632.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4979350?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4979350?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10994826-Tribunal_Order_Redacted.pdf.

Unit/Flat Flat 3, 62 Monteith Crescent, Remuera, Auckland Tenancy Tribunal Case 4979350 — State of repair

Claims and awards in Tenancy Tribunal application 4979350 — net $659.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – failure to maintain/quiet enjoyment	$632.00	Compensation – failure to maintain/quiet enjoyment
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$659.00
Total payable by Landlord to Tenant	$659.00

Order

Street Smart Property Management Limited As Agent For Timothy Shaun Bowring must pay [The tenant/s] $659.00 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing, conducted via video conference.
The tenants applied for compensation and exemplary damages, claiming the landlord failed to maintain the premises.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Failure to maintain
It is well settled that, the landlord’s obligation under s 45 RTA 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, depends on the gravity of the problem but also on the objective attempts made 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.
The tenants claim that the landlord failed address a moisture/flooding problem within a reasonable timeframe.
This tenancy commenced 26 June 2024 and just prior to that a problem in the toilet was reported from the downstairs unit. A plumber attended 25 June and reported no plumbing issue that might have contributed to the event. He did note some prior water damage in the upstairs toilet.
Given the report of no obvious cause, the landlord did not raise any issue with the tenant and the tenancy commenced (the tenant moved in a few days into the tenancy).
On 8 July 2024 the tenant raised a problem with wet carpet in what is known as Bedroom 3. The landlord reacted promptly and on 10 July 2024 a contractor attended. A roof leak was identified as the likely cause. A dryer was provided.
A follow up visit from the contractor was attempted to be scheduled on 12 July 2024. However, on 15 July 2024 the tenants requested a release from their fixed-term tenancy. This was agreed to with an early exit allowed for the tenant’s convenience and no break fees sought. The tenant left some two weeks later, on 1 August 2024.
The landlord reduced the rent by $240.00 per week due to the bedroom three issue. This equated to a rebate of $540.00 before the tenancy ended.
The tenant claimed the premises conditions were adversely impacted beyond bedroom three and the cold and damp was a problem throughout. There is limited evidence of this but the breadth of the established dampness makes such an impact a reasonable likelihood, especially during the winter period as at that time.
The owner engaged a specialist to assess the premises for dampness. This assessment confirmed unacceptable level of dampness in bedroom three as well as bedroom two.
The landlord advised the premises remains empty as remedial work is completed. The duration since identification of the leak(s) is significant and suggests the repair strategy is not straight-forward.
The tenant acknowledged the compensation to date of $540.00. The application sought $632.00 compensation. This was to cover the unexpected early move out cost and inconvenience as well as excessive electricity usage due to extra heating and the drying required.
In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 (upheld in the District Court decision of Birch v Otautahi Community Housing Trust, CIV-2018-009-002094 [2020] NZDC 17667) sets out the factors that the Tribunal should take into account when making a damages award, being: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
The duration of the breach was reduced only because the tenant proactively relocated. Given the premises is still under repair a continuation for the tenancy with immediate improvement seems unlikely, or if so, at the detriment to the tenants’ enjoyment of the premises. The effect on the occupants was both a loss of amenity and quiet enjoyment.
I award the compensation as sought. This award considers the previous rent reduction of $540.00 as well as other adverse impacts on the tenants.

Should exemplary damages be awarded?

Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching this obligation 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 failed to maintain the premises. There was some historic evidence of water damage, but the extent of any prior notice or awareness is uncertain. I find they have committed an unlawful act.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
I have considered the configuration of the house and the different ownership between the floors. I am also mindful of the reasonable responsiveness of the landlord when the problems were reported. Having considered all evidence and submissions I do not consider the unlawful act is considered intentional and the problem is more appropriately addressed via the compensation above. Filing fee
Because [The applicant/s] has substantially succeeded with the claim I must reimburse the filing fee. Suppression
Section 95A RTA states regarding suppression orders that 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.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The tenants requested suppression in their application. As they have been substantially successful, suppression is ordered.

Claims and awards in Tenancy Tribunal application 4979350 — net $659.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – failure to maintain/quiet enjoyment	$632.00	Compensation – failure to maintain/quiet enjoyment
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$659.00
Total payable by Landlord to Tenant	$659.00

Order

Street Smart Property Management Limited As Agent For Timothy Shaun Bowring must pay [The tenant/s] $659.00 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing, conducted via video conference.
The tenants applied for compensation and exemplary damages, claiming the landlord failed to maintain the premises.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Failure to maintain
It is well settled that, the landlord’s obligation under s 45 RTA 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, depends on the gravity of the problem but also on the objective attempts made 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.
The tenants claim that the landlord failed address a moisture/flooding problem within a reasonable timeframe.
This tenancy commenced 26 June 2024 and just prior to that a problem in the toilet was reported from the downstairs unit. A plumber attended 25 June and reported no plumbing issue that might have contributed to the event. He did note some prior water damage in the upstairs toilet.
Given the report of no obvious cause, the landlord did not raise any issue with the tenant and the tenancy commenced (the tenant moved in a few days into the tenancy).
On 8 July 2024 the tenant raised a problem with wet carpet in what is known as Bedroom 3. The landlord reacted promptly and on 10 July 2024 a contractor attended. A roof leak was identified as the likely cause. A dryer was provided.
A follow up visit from the contractor was attempted to be scheduled on 12 July 2024. However, on 15 July 2024 the tenants requested a release from their fixed-term tenancy. This was agreed to with an early exit allowed for the tenant’s convenience and no break fees sought. The tenant left some two weeks later, on 1 August 2024.
The landlord reduced the rent by $240.00 per week due to the bedroom three issue. This equated to a rebate of $540.00 before the tenancy ended.
The tenant claimed the premises conditions were adversely impacted beyond bedroom three and the cold and damp was a problem throughout. There is limited evidence of this but the breadth of the established dampness makes such an impact a reasonable likelihood, especially during the winter period as at that time.
The owner engaged a specialist to assess the premises for dampness. This assessment confirmed unacceptable level of dampness in bedroom three as well as bedroom two.
The landlord advised the premises remains empty as remedial work is completed. The duration since identification of the leak(s) is significant and suggests the repair strategy is not straight-forward.
The tenant acknowledged the compensation to date of $540.00. The application sought $632.00 compensation. This was to cover the unexpected early move out cost and inconvenience as well as excessive electricity usage due to extra heating and the drying required.
In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 (upheld in the District Court decision of Birch v Otautahi Community Housing Trust, CIV-2018-009-002094 [2020] NZDC 17667) sets out the factors that the Tribunal should take into account when making a damages award, being: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
The duration of the breach was reduced only because the tenant proactively relocated. Given the premises is still under repair a continuation for the tenancy with immediate improvement seems unlikely, or if so, at the detriment to the tenants’ enjoyment of the premises. The effect on the occupants was both a loss of amenity and quiet enjoyment.
I award the compensation as sought. This award considers the previous rent reduction of $540.00 as well as other adverse impacts on the tenants.

Should exemplary damages be awarded?

Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching this obligation 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 failed to maintain the premises. There was some historic evidence of water damage, but the extent of any prior notice or awareness is uncertain. I find they have committed an unlawful act.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
I have considered the configuration of the house and the different ownership between the floors. I am also mindful of the reasonable responsiveness of the landlord when the problems were reported. Having considered all evidence and submissions I do not consider the unlawful act is considered intentional and the problem is more appropriately addressed via the compensation above. Filing fee
Because [The applicant/s] has substantially succeeded with the claim I must reimburse the filing fee. Suppression
Section 95A RTA states regarding suppression orders that 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.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The tenants requested suppression in their application. As they have been substantially successful, suppression is ordered.

Tenancy Tribunal case 4979350 — State of repair at Unit/Flat Flat 3, 62 Monteith Crescent, Remuera, Auckland

At a glance

Tenancy Tribunal case 4979350 — State of repair at Unit/Flat Flat 3, 62 Monteith Crescent, Remuera, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions