What was Tenancy Tribunal case 4994828 about?

The tribunal order states: The Tribunal orders suppression of the tenants’ name and identifying details.

How much money was awarded in case 4994828?

Costs: $1,687.70 awarded to tenant; Property Damage: $5,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4994828?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4994828?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12149149-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4994828 about?

The tribunal order states: The Tribunal orders suppression of the tenants’ name and identifying details.

How much money was awarded in case 4994828?

Costs: $1,687.70 awarded to tenant; Property Damage: $5,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4994828?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4994828?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12149149-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4994828 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4994828 — net $6,714.70 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breach s45 Costs	$5,000.00	breach s45 Costs
Costs	$1,687.70	Costs
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$6,714.70
Total payable by Landlord to Tenant	$6,714.70

Claims and awards in Tenancy Tribunal application 4994828 — net $6,714.70 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breach s45 Costs	$5,000.00	breach s45 Costs
Costs	$1,687.70	Costs
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$6,714.70
Total payable by Landlord to Tenant	$6,714.70

Order

The Tribunal orders suppression of the tenants’ name and identifying details.
Tapro Limited must carry out the following work to the premises, which must be completed by 31 March 2025: a.Complete repairs to all windows (including frames and sills) to ensure there are no draughts, and the windows function effectively; and b. Complete repairs to all guttering/spouting.
Poh-Khean Tan and Tapro Limited must pay The Chief Executive, Ministry of Business, Innovation, and Employment on behalf of [The tenant/s] $6,714.70 immediately in accordance with the following table:
Poh-Khean Tan and Tapro Limited must pay [The tenant/s] $5,000.00 immediately by way of compensation.
Mr Perera, or any company of which he is a director, is restrained from renting a premise owned by himself that is poorly maintained or does not comply with all requirements in respect of buildings, health, and safety, under any enactment so far as they apply to the premises.

Reasons

Both parties attended the two-day hearing of these claims.
The applicant is the Chief Executive, of the Ministry of Business, Innovation, and Employment (MBIE) who have brought proceedings pursuant to section 124A(1)(a) of Residential Tenancies Act 1986 (the Act) on behalf of the tenants of [Tenancy address suppressed]. The Tribunal must consider applications filed by the Chief Executive on behalf of tenants. The Chief Executive was represented in proceedings by Counsel: Ms Sataiya-Calderwood and Ms Geary.
The First Respondent is Poh-Khean Tan trading as PK Property Services. Mr Tan signed the tenancy agreement with the tenants in his own name as landlord and managed the tenancy between May 2012 until 4 January 2024.
The Second Respondent is Tapro Limited and is the registered owner of the property. Patikiriachchige Aruna Ranjana Perera is the sole director and shareholder of Tapro Limited. Mr Perera took over the management of the property from 4 January 2024.
The applicant seeks exemplary damages, work orders and costs for alleged breaches by the landlord (both respondents) of the Act, as follows: a. Failure to maintain the premises in a reasonable state of repair (section 45(1)(b) of the Act), and b. Failure to comply with requirements in respect of building, health, and safety, namely the Housing Improvement Regulations 1947 (HIR) (section 45(1)(c) of the Act).
I discuss the claims separately below. I begin however by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the Chief Executive) to establish their claims “on the balance of probabilities”. That means that they must prove that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. The status of the Respondents
The Chief Executive submits that both respondents have been rightly named as they both retain liability as the landlord under the Act.
Specifically, they say Mr Tan is the landlord in accordance with section 2 of the Act as he is named as such on the tenancy agreement 1 and managed the property through the relevant period.
Mr Tan says he was only ever the agent despite what it says on the agreement. He says the tenants were always aware he was only the owner’s agent and as such he had to defer to Mr Perera for any work that was required.
Section 2(1) of the Act defines the meaning of landlord as: in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement ; and, where appropriate, includes- ... (e) an agent of the landlord"
Accordingly, the Act specifically allows for an agent to be deemed a landlord where appropriate.
There are many cases that discuss the meaning of where appropriate. In Lovell v At Home Rentals Limited 2 the Tribunal found both the agent and owners liable, relying on the extended definition of landlord in s 2(1), even though the tenancy agreement described the agent as “an agent for” the owners. Relevant factors to this determination included that the owners were overseas, the agent was responsible for managing all aspects of the tenancy, and some of the tenant’s complaints related specifically to the acts and omissions of the agent.
Mumby v Gary Brown Realty Ltd 3 (Mumby) is District Court authority that is binding on the Tribunal. The Court there looked at the situation as a whole and considered several factors in deciding the agent was liable under the tenancy agreement. Those factors included that the name of the agent was inserted in the tenancy agreement under the landlord’s details (without any qualifying words), rent was paid to the agent, a bond lodgement letter from the Bond Centre referred to the agent as landlord, the agent was involved in inspections, 1 The landlord is noted solely as PK Tan on the tenancy agreement 2 [2018] NZTT, Tauranga, 4112773 3 [2011] DCR 420 the agent dealt with the tenant's enquiries and complaints, and the agent issued a termination notice.
This case is similar to Mumby as Mr Tan signed the tenancy agreement, without qualification, as the landlord, and rent was paid to him. He was the primary point of contact for the tenants over the relevant period who had little contact with the owner Mr Perera until relatively recently. Mr Perera’s evidence is that he was frequently overseas and there is no evidence the tenants had his contact details until recently.
Further, at least initially Mr Tan had control over maintenance as he deducted any costs incurred from the rent he received. That did subsequently change, but ultimately he received the rent and forwarded the proceeds, minus management and maintenance fees, to Mr Perera.
Mr Tan gave evidence that he was not aware of the implications of naming himself as landlord when he did so, but did later become aware. He did not at that point attempt to correct the tenancy agreement.
I am satisfied that it is appropriate that Mr Tan be considered a landlord for this tenancy (until his agency ended in January 2024) in accordance with section 2 of the Act. From the tenants’ perspective he was their landlord as is recorded in writing. For this and the above reasons, Mr Tan is therefore appropriately named as first respondent in these proceedings.
The Chief Executive submits that Mr Perera is also the correct second respondent for each of the claims because he, as sole director of Tapro Limited was the owner of the premise throughout the relevant period.
The owner of a premise will usually be the grantor of the tenancy and therefore the landlord. There is no evidence here that indicates to the contrary and Mr Perera accepts this.
Accordingly, both Respondents meet the definition of landlord as noted in section 2 of the Act. They are therefore both jointly and severally liable for any breaches of the Act. When I refer to ‘the landlord’ below I am referring to them both jointly. Background
This tenancy commenced in May 2012. The tenants are [The tenant/s] and their two children, currently aged 12 and 14. The youngest child has an intellectual disability and has previously been diagnosed with rheumatic fever. He was born during this tenancy. Both children have been hospitalised at times during this tenancy with respiratory issues. The family are supported by the Ministry for Social Development (MSD), and they have been on the waiting list for social housing for a number of years.
In June 2023 upon a medical referral, [healthy homes assessor], a Healthy Homes Assessor for [healthy homes assessment company], 4 visited the family. As a result of his findings, he laid a complaint with the Tenancy Compliance and Investigations Team (TCIT) of MBIE on 8 September 2023.
TCIT visited the home on 17 and 19 October 2023. At the latter visit Graeme Pownall, a contract weathertight assessor for MBIE, also attended. He issued a report on 18 December 2023 which was forwarded to the respondents.
On 4 January 2024 Mr Tan resigned from his property management contract with Mr Perera.
On 4 September 2024 proceedings were filed by the applicant. Evidence for the Applicant Investigator O’Keefe’s evidence
Investigator O’Keefe was the chief TCIT investigator for this home and gave oral evidence at the hearing. She explained she had had previous involvement with Mr Tan through other investigations but had no major concerns with him prior to this investigation. She had no prior involvement with Mr Pererea.
Her first impressions of the home were that it was very cold, there was considerable mould growth throughout the home, the guttering had holes in it, windows were poorly maintained, there was rain ingress, unreasonable gaps were evidenced and the home was poorly maintained.
She says [The tenant/s] explained to her that her children had been frequently sick over the years and her husband had tried to block up the windows to prevent the rain and draughts getting in. She would clean the mould, but it would recur quickly. She had said she had told Mr Tan many times about the issues, but very little maintenance had been undertaken over the years. Her observance of the family is that they are aware of the need to ventilate and do so whenever possible.
The day prior to Investigator O’Keefe’s first visit, 5 [The tenant/s] had contacted her saying Mr Perera wanted to delay their visit for a month so he could fix things. She denied this request.
She visited a third time on the 15 th of July 2024 and noticed that a window was missing. Mr Perera had screwed a piece of cardboard covered in glad wrap to the space whilst he had it repaired after it had fallen out. There was a pen sized gap at the top and there was evidence of water being absorbed into the covering. 4 Te Whatu Ora Well Homes Healthy Housing Initiative 5 She initially attended on 17 and 19 October 2023
She further attended the home on 23 January 2025 to provide the Tribunal with an updated report. At that time, she noted that the home had a new roof and guttering, preparation work for external painting had been started, internal painting had been completed, and some windows had been repaired. The bathroom extractor fan remained internally vented and there was still no ground moisture barrier.
In summary her evidence is that the home was extremely poorly maintained when she first saw it. The effect of the state of the house on the tenants was serious and appeared to have been longstanding. Repair work had commenced since TCIT became involved but was incomplete at the date of hearing. Investigator Patelesio’s evidence
Investigator Patelesio also gave oral evidence and produced the report and photos from the site visit on 17 October. She explained that she tried many of the windows but could not open them herself. Some hinges were seized, some latches missing, and some windows were not flush with the wall. She saw and smelt mould, commenting that this was the worst mould she has seen in any of the homes she has inspected. She observed rotten wood in some windowsills and noticed carboard had been placed over one window to stop the draughts; others had varying sorts of fillers applied. The daughter of the house had hung a covering from one ceiling in an effort to hide the mould from view.
She gave the evidence that she observed the tenants ventilating the property and explained the bathroom extractor fan came on with the light; as such it was used regularly.
In summary, her evidence is that the state of the house was extremely poor and appeared longstanding. Investigator Tyagi’s evidence
Investigator Tyagi’s statement was admitted into evidence without challenge, and corroborates Investigators O’Keefe and Patelesio’s evidence regarding the state of the house. [The tenant/s] evidence
[The tenant/s] gave evidence on behalf of her family with the assistance of a Tongan interpreter. She says she had no choice but to accept this home in 2012 despite it being poorly maintained when they moved in as they were in dire need of housing. She was told by Mr Tan to use white vinegar to clean the mould when she raised the issue. She says she cleans the mould regularly, but it returns quickly.
She says she told Mr Tan about her concerns for the house a number of times over the years and he would take photos and send them to Mr Perera, but little work was done because, she was told, Mr Perera did not approve the work. This was different after TCIT became involved and the house has been greatly improved over the last year.
She explains she did not complain over the years because she prayed and had faith that when the time was right the home would be repaired. She says Mr Tan did not undertake many inspections over the years.
She further explains that for many years not all the windows have been able to be closed or opened and her husband has tried to fill the gaps to keep the house warm. They can feel the draughts through some windows and rain comes in. The window in the hallway in particular lets in a lot of rain which makes the stairs slippery and the children have fallen on many occasions. The windows have been in a bad state for years and one fell out last year.
She is aware of the need to ventilate and says they all use the fan when taking a shower. She only used a pressure cooker for a short time and stopped when Mr Perera told her to.
Her whole family used to get sick a lot, but things are better now. She had been told by the doctor that her son’s rheumatic fever was because of cold in house. She has tried to find alternative housing but has not been successful.
She is worried about this process because she does not want people to be hurt or fined. [Health homes assessor]’s evidence
[The assessor] first became involved with this family in June 2023 in his role as Healthy Homes Assessor for [home assessment company]. The referral came from the Ministry of Health, Manatū Hauora, with respect to the young son because he had rheumatic fever.
He observed the state of the property to be in a serious state of disrepair. He saw extensive mould throughout, inefficient drainage, insufficient insulation, poorly maintained windows, inadequate ventilation and a hole in the roof. There was no heating and no rangehood. He subsequently provided the family with two heaters, a bed and new bedding.
As a result of his observation, he wrote to MSD to further support the family in securing state housing and a FACE (full and correct entitlement) assessment. He was sufficiently distressed at the family’s living circumstances that he felt he had to do something more, and so discussed the matter with TCIT. In his view the health implications from living in this home were severe.
[The assessor] says his job is usually to empower families to help themselves to live in a healthy home, therefore primarily educational. However, this situation was different because of the state of the home. His understanding was that there was a strong sense of whakamā 6 for this family as they did not want to upset anyone, which is why the situation had continued for so long. Mr Pownall’s evidence
Mr Pownall is a registered architect and contracts to MBIE to provide advice on leaky homes.
Mr Pownall visited the home on 19 October 2023 and produced his report two months subsequent. His findings were (extracts): 7 a. The spouting have corroded...little roof water will be entering the stormwater system. b. The condition of the windows is appalling...many of the windows are sealed shut...many windows cannot be shut....many of the windows leak. c. An attempt has been made to install insulation but only partially successful. d. Power points are coming away from the walls. e. There is no permanently fixed heating. f. There is surface mould...is creating airborne spores which are a particular health hazard. (sic)
He considers the property breached the Health Act 1956 and was not fit for human occupation. 8
Mr Pownall was asked to comment on the use of a pressure cooker 9 and its potential contribution to mould growth. His view was that even if a pressure cooker was used incorrectly, a house should be in a condition where methods can be used to expel excessive moisture. This one, when he inspected it, was not.
He was also asked to comment on the allegation that a lack of use of the windows has resulted in their current state. He agrees that windows should be used regularly in order to maintain them however says it was not from misuse that these ones became as corroded and decayed as they were. His view was 6 Te reo for shame or embarrassment 7 Page5-6 8 Page 13 9 See Mr Perera’s evidence discussed below that the windows had been deteriorating for some years, quite possibly up to a decade if not more. He says it is a lack of maintenance that has caused this level of disrepair.
He did not consider that the extent of the mould was due to a lack of cleanliness. He noted the tenants were ventilating to the best of their ability when he attended and the mould was extreme. Evidence for the Respondents Mr Tan’s evidence
Mr Tan’s evidence is that the tenancy started off well. The property was provided in a reasonably clean and tidy way, and he was authorised to attend to any maintenance work himself. However, as time went on Mr Perera wanted to do maintenance work himself or get his own contractors, and this resulted in maintenance being neglected.
He wanted to help the tenants and so stayed on as property manager to keep the rent low for them and try to encourage Mr Perera to undertake the maintenance.
He referenced an event in 2018 when the Sustainability Trust became involved and advised that the whānau living in this home were at risk of acute rheumatic fever. Their report recommended insulation in the ceiling, a ground vapour barrier, heating, an extractor fan in the kitchen, maintenance to the windows, guttering replacement and attendance to leaks. 10
The address on the report and covering email was [address redacted], the adjoining home to this one, however Mr Tan says it was definitely about [Tenancy address suppressed] and they made a typo. He is sure of this because there was not a family in [address redacted] at the time and the report discusses the family with sick children. As there is no evidence to the contrary and the issues identified are similar to those disclosed in these proceedings, I accept the report refers to this property, [Tenancy address suppressed].
Mr Tan forwarded the concerns to Mr Perera who responded as follows: 10 Among other matters
He says as a result of this report he called Tenancy Services to get assistance but they could not help him. He says he did not know how to handle the situation and so his wife suggested to the family that they apply for social housing, which they did. The repairs were too extensive for him to undertake without authorisation.
He says he told Mr Perera that a rangehood and heater and insulation were required many years prior to their installation, and he had no involvement in the installation of them. He says he did not know that the provision of heating was a legal landlord requirement and agrees he suspected at one point that the tenants were using the oven as heating.
He agrees the guttering was an issue from the start of the tenancy, and the windows from early into the tenancy.
Mr Tan provided documentary evidence of the following notifications to Mr Perera: a. In May 2013 that a window frame was rotting. b. A request to meet and discuss health and safety maintenance issues in 2014. 11 In particular he references the stairwell windows leaking. c. In September 2017 notification that there were rotten weather boards, birds nesting in the wall, some window frames rotting and a rotten gutter. d. In 2018 the discussion about the Sustainability Trust report. e. In July 2023 advice that there was water ingress, the home was not meeting the Healthy Homes Standards and maintenance was required on the windows.
Mr Tan has been a property manager for over 22 years. He accepts he did not undertake regular formal inspections but did attend the property frequently and regularly reported on any issues that required addressing with his invoices. Additionally, Mr Tan has provided a reference that says he is highly knowledgeable about property regulations.
He says the failures were not intentional nor malicious, but were a product of poor communication between himself and Mr Perera, and Mr Perera not wishing to spend money on the property. He has welcomed these proceedings as he has felt unable to take meaningful action to help this family prior. Mr Perera’s evidence
Mr Perera accepts the alleged state of the property. He says he purchased the property in 2006 and the first tenants damaged the home. He then instructed Mr 11 Email 14 October 2014 Tan to manage this tenancy which was commenced after remedial work was undertaken.
He says he was at the property sporadically over the years to do work but left the responsibility of maintenance with Mr Tan as it was his job to manage. He says he did not realise it was as bad as it was until TCIT became involved.
Mr Perera says the accountability is threefold: i. Firstly, he accepts that he, as the owner, does have overall responsibility. ii. Secondly, he says, Mr Tan has responsibility because he did not increase the rent which would have given him enough money to do the repairs, he did not do regular inspections and did not tell him how bad the property really was. iii. Thirdly, the tenants did not clean nor ventilate, they used a pressure cooker incorrectly and may well have got sick for other reasons. He says they did not complain so it cannot have been that bad.
Mr Perera’s evidence is that in 2011 when there was a leak in [address redacted], he was advised that the shared roof would need replacing in approximately 5 years’ time. He also accepts he was aware a range hood was required and had it in his possession for at least a year prior to installation. He agrees he installed it after [healthy home assessor] visited the property.
His reasoning for his alleged failures is financial. He says he always wanted to get the property ‘up to standard’ however could not do so because he was not getting enough money in in rent, and was not able to secure a loan any earlier. Loss of employment and covid times contributed to his financial instability. He says it was not a lack of desire, but purely a lack of funds.
It was fortunate that his loan application was finally approved at the end of 2023, just after TCIT became involved, so he could commence the required work. He has now attended to the majority of the maintenance.
Mr Perera owns three other rental properties and has been in the industry since 2007. The law and discussion

Has the landlord failed to comply with their obligations?

Under section 45 of the Act, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety. The landlord’s obligation under section 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, 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.
The applicant contends that the landlord has breached section 45(1)(b) of the Act by failing to maintain this property, in particular the following issues: a. Decaying windowsills and frames, b. Deteriorated and peeling paint on the external and internal walls throughout the property, c. Rotten spouting/guttering, d. Windows throughout the property unable to be opened or closed, e. Slippery stairs due to water leaking in from the windows, f. Significant mould on the ceiling throughout the property, and g. Gaps and holes throughout the property causing unreasonable draughts to flow in and out of the property.
A relevant enactment in relation to buildings, health and safety is the HIR discussed above. The applicant contends the landlord has breached the following HIR: i. Regulation 6 states that: Every living room shall be fitted with a fireplace and chimney or other approved form of heating. This was an alleged breach between the commencement of the tenancy in May 2012 and November 2023 when the landlord installed a heat pump (after proceedings had been filed). ii. Regulation 15 requires every house to be free from dampness. This is an alleged breach from 2012 and continuing.
All alleged breaches are accepted by the landlord and established in evidence. This home was in a poor state when TCIT commenced its investigation, as it had not been adequately maintained for a number of years.
I have no trouble in finding that this home was prone to damp from at least 2014 when Mr Tan pointed out to Mr Perera that the stairway window was leaking. The causation of the inherent damp is multifaceted but fundamentally comes down to landlord failure to maintain. The applicant submits that the state of the windows was atrocious, and I agree. Many windows could not be opened, others could not be closed, some fell out. There was also no heating, 12 insufficient extractor fans and insufficient insulation.
On the basis of the evidence, I am satisfied that both respondents were aware in 2018 that the tenants were getting sick, and the state of the house was the 12 until November 2023, therefore were without heating for 11 years suspected reason. As above, they were aware of the general poor state of maintenance earlier than that.
I do not accept the contention that using a pressure cooker contributed to the level of mould in the premise. There is no evidence to back up Mr Perera’s belief that using a pressure cooker incorrectly on the bottom storey of a home could cause mould in the upstairs ceilings. There was also no range hood nor functioning windows in the kitchen, therefore any contribution from the tenants’ cooking would have been overridden by the landlord’s failure to properly maintain the home. The home was simply not functioning as it should.
I also do not find it established in evidence that the tenants’ cleaning habits and/or ventilation habits contributed to the poor state of the home. I accept the evidence of several witnesses that they observed the tenants to ventilate when possible and that they were aware of the effects of a failure to do so. Further, a tenant cannot be expected to clean recurring mould to this extent from ceilings.
The applicant challenges Mr Perera’s submission regarding a lack of funds to undertake maintenance given he purchased another home in 2020 at the height of the market. I also do not accept a lack of funds as justification for these failures. Operating a tenancy is a business, if a business is unaffordable it cannot, or should not, continue. Obligations under the Act are not contingent upon available funds. There were options available to both respondents when the maintenance got out of hand, none of which were taken, to the detriment of the tenants.
Mr Tan says he felt he was unable to do anything given he was not permitted to undertake the maintenance required and his requests were ignored by Mr Perera. He therefore considered remaining on as property manager and keeping the rent low was the best he could do.
I acknowledge his view. However, as landlord, Mr Tan was required to meet his obligations under the Act.
In a recent case 13 (Hamouda) Judge Clark stated: 14 What that means is it is no excuse for a property manager to blame the owner and effectively ignore requests which are made by tenants when obligations under the RTA have been breached.
Apportionment, as discussed at the hearing, is a contractual issue between Mr Tan and Mr Perera and as such a matter for an alternative jurisdiction. 15 I do 13 Abdulla Moussa Ragab Hamouda v Gralin property management (Auckland Central) Limited [2024] NZDC 16642 14 Paragraph 34 15 See paragraph 33 of the Hamouda decision: Where liability is imposed on a property manager (as agent) the property manager may be entitled to seek compensation from the owner under general note however that Mr Tan has been upfront throughout this process and has fully supported the tenants.
In summary, the landlord has breached section 45(1)(b) by failing to maintain the property for over a decade. The landlord has also breached the HIR Regulations 6 and 15 which is a breach of section 45(1)(c) of the Act. This is an unlawful act.

Should work orders be made?

A considerable amount of work was undertaken after TCIT became involved by both Respondents and the house is now in much better condition. Some work remains.
The applicant seeks work orders to: a. Complete repairs to all windows (including frames and sills) to ensure there are no draughts flowing in and out of the property; and b. Complete repairs to all guttering/spouting.
Mr Perera consents to the work orders as he says he has almost completed the work. Accordingly work orders are made by consent as sought.

Should exemplary damages be issued?

Breaching section 45 of the Act 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 the Act.
As above I have found that the landlord has breached sections 45(1)(b) and (c) of the 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) the Act.
The first question therefore is whether the respondents acted with intent. As noted by the applicant, the element of intention is not about an intent to evade the law, but an intent to do the acts that constituted a breach in the law. 16
I am satisfied, as discussed above, that it has been established in evidence that both respondents have been aware of the poor state of the house for many agency law or by way of contract, but that is an issue between the property manager and the owner and not something which can be resolved in the tenancy jurisdiction. 16 Parton v Fifita (2001) DC Auckland TT 1815/00, cited in MBIE v Sumich [2017] NZTT Auckland 4088383 at [26] years. Mr Tan and Mr Perera both acknowledge they have been aware of maintenance issues for some time, and both are aware of their obligations having operated in this industry for many years.
I therefore find that these unlawful acts have been committed intentionally. I accordingly turn to whether exemplary damages should be ordered, and if so to what level.
Ms Geary submits that there is no evidence of any intention by the landlord to undertake the required work until external organisations became involved. She urges the Tribunal not to accept the submission that the timing of the loan was coincidental with TCIT involvement.
This, Ms Geary submits, is a particularly vulnerable family who were not in a position to challenge the state of the property. The effect on the family has been serious. They have lived in conditions that were likely detrimental to their health for many years and have raised two children there. They have had to block window drafts and water ingress themselves and have windows that were not able to be opened nor closed. They have lived in a cold, damp environment with no ability to regulate their own home’s temperature for many years.
Ms Geary submits that the following tea o māori principles are relevant here: a. Whakamā: the family has suffered intense embarrassment and shame at the state of their home. b. Manaaki: that this family should be afforded the respect they deserve in not having to live in a home in the condition it was. c. Utu: that these proceedings are not about compensation but balance; restoring this house to a healthy home and ensuring it remains that way.
The applicant submits the following public interest factors in awarding the maximum exemplary damages: a. Deterring conduct which has been committed repeatedly over a period of time; b. Maintaining minimum standards in residential tenancies; c. Protection of vulnerable tenants; d. Not inadvertently rewarding anticompetitive behaviour in an already stretched rental marketplace; e. Protecting tenants from landlords who cannot afford to run a tenancy. f. Ensuring property owners have access to responsible and lawful property management services; and g. Protecting and promoting the regulatory function of TCIT.
I accept these submissions. I have found that this family has lived in an unhealthy and unsafe environment for at least the last 10 years. Their landlord knew what they were enduring but did nothing. Their landlord knew their inaction was unlawful but continued to do nothing. Their landlord was even advised by an external agency in 2018 that this family was at risk but continued to do nothing.
It was not until TCIT became involved that any meaningful action was taken. I do not accept Mr Perera’s financial reasoning for the failure. His decision to ignore Mr Tan’s advice and his blaming of this family throughout the tenancy and now during proceedings is reprehensible.
In mitigation Mr Perera has undertaken a significant amount of work on the property over the last year and has consented to work orders. Both respondents have engaged with TCIT throughout these proceedings and been upfront with the Tribunal. I accept that Mr Tan has been unsure what to do to help [The tenant/s] and has kept the rent low as one way to support them.
No family should ever have to live in the way [The tenant/s] have lived for over a decade. This was a wholly unhealthy, unsafe and demoralising environment that I have no doubt in finding contributed to their children’s ill health. A situation that was effectively dismissed by Mr Perera.
For the above factors, but also bearing in mind that Mr Perera has undertaken a significant amount of work since TCIT became involved, I find that an award of $5,000 exemplary damages is justified in the circumstances. Tribunal initiated orders Compensation
The Chief Executive has not applied for compensation. Awards of compensation in such proceedings are to be paid to the tenant the Chief Executive represents. 17 This is opposed to awards of exemplary damages which are to be paid to the Crown. 18
Despite the lack of application, I consider it reasonable to make an award of compensation in this situation. This is because [The tenant/s] are the ones who have had to live with the state of this property for 12 years, to their detriment. Frankly it is just that they receive financial recompense for their experience.
The District Court in Maria Cavanagh v Kainga Ora [2022] NZDC 7003 held that the Tribunal may award compensation even though application has not been made for such. As follows: 19 17 See section 124B(2)(f) of the Act 18 See section 109(6) of the Act It seems to me that having determined that there had been a breach of the obligations of the landlord in respect of Ms Cavanagh the Tribunal should have gone on to consider whether it should nonetheless make an award of damages for that breach. Even though there was no specific claim for ordinary damages as opposed to exemplary damages I do not consider it appropriate for a tribunal with the extensive jurisdiction of the Tenancy Tribunal to allow itself to become bogged down in pleading points. Section 77(l)(n) of the RTA provides that the Tribunal is empowered: (n) to order the landlord or the tenant under any tenancy agreement to which this Act applies to pay to the other party such sum by way of damages or compensation as the Tribunal shall assess in respect of the breach of any express or implied provision of the tenancy agreement or any provision of this Act:
It is 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 of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement or law.
[The tenant/s] have suffered. They have lived in an environment that is unhealthy and demoralising for many years, whilst being aware their landlord knew and did nothing to help. No amount of money will make that right.
In mitigation I do note that the family has paid a rent that is well below market rent for over a decade. 20 This does not justify the lack of maintenance or vice versa, however it is a relevant factor in assessing the appropriate level of compensation.
I also take into account the level of inconvenience they have endured over the recent months whilst Mr Perera has undertaken the maintenance work. At times they had no roof, at others windows were missing, rooms have been painted leading to a lack of amenity and they have endured these proceedings and the stress and uncertainty that comes from that.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a commonsense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party. Having regard to all relevant factors, I assess that an award of $5,000 compensation is justified. 19 At paragraph 65 20 Their rent has been $270 per week throughout their tenancy Restraining orders
Pursuant to section 109A of the Act, also on my own initiative 21 I consider it in the public interest to restrain Mr Perera, or any company of which he is a director, from breaching the Act in this way again. This is because he owns other rental properties and has repeatedly attempted to place blame on the tenants for this situation. This indicates a lack of understanding and/or respect for his responsibilities.
Mr Perera is therefore restrained from renting a premise owned by himself that is poorly maintained or does not comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
I note that it is an offence to intentionally contravene a restraining order and punishable upon conviction with a fine not exceeding $3,600.
I do not consider that Mr Tan should be similarly restrained as there is no evidence that he has faced similar issues in any other property he manages, and I accept he felt he was attempting to remedy this situation.

Should costs be awarded?

Because the Chief Executive was successful in their claims, I must award reimbursement of the filing fee.
The applicant submits that the landlord should also be liable for the costs of the expert witness, Mr Pownall, who was summonsed to attend the hearing. They make this submission pursuant to section 102(2)(b) of the Act, which provides that the Tribunal may award costs where any party is represented by counsel. Mr Pownall’s involvement was required to establish the lawfulness of the condition of the property and his report has resulted in significant maintenance work being undertaken.
Specifically, Mr Pownall’s costs of $1,687.70 are for his time in the assessment of the property, provision of the report and attendance at the hearing.
Rule 13 of the Residential Tenancies Rules 2010 provides: A person who attends before the Tribunal for the purpose of giving evidence in any proceedings is entitled to receive any fees, allowances, and travelling expenses that the Tribunal directs in accordance with the scale set out in the Schedule of the Witnesses and Interpreters Fees Regulations 1974. 21 As opposed to doing so upon the landlord’s application
The Witnesses and Interpreters Fees Regulations 1974 have now been replaced 22 by the Witness and Interpreters Fees, Allowances, and Expenses Regulations 2023 (WIFR).
The Chief Executive’s claim for Mr Pownall’s costs are within the WIFR and as such the orders are made as sought.

Should suppression orders be made?

Where the Chief Executive brings a claim on behalf a tenant under s 124A RTA, the Tribunal is required to order that the name and identifying details of the tenant not be published. 23 Accordingly the tenants’ details are not to be published, including the address of the premise.
I do consider it in the public interest 24 that the landlord’s details be published. They are the landlord of other tenancies and have not been successful in defending the claims.

Tenancy Tribunal case 4994828 — Exemplary damages

At a glance

Tenancy Tribunal case 4994828 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Should work orders be made?

Should exemplary damages be issued?

Should costs be awarded?

Should suppression orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Should work orders be made?

Should exemplary damages be issued?

Should costs be awarded?

Should suppression orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions