What was Tenancy Tribunal case 4998788 about?

The tribunal order states: Property Brokers Limited As Agent For Wairoa Property Investment Ltd must

How much money was awarded in case 4998788?

Property Damage: $2,400.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4998788?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4998788?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11734272-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4998788 about?

The tribunal order states: Property Brokers Limited As Agent For Wairoa Property Investment Ltd must

How much money was awarded in case 4998788?

Property Damage: $2,400.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4998788?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4998788?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11734272-Tribunal_Order.pdf.

51 Somerville Street, Wairoa, Wairoa 4108 Tenancy Tribunal Case 4998788 — State of repair

Claims and awards in Tenancy Tribunal application 4998788 — net $2,427.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: failure to maintain - fire damage	$2,400.00	failure to maintain - fire damage
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,427.00
Total payable by Landlord to Tenant	$2,427.00

Claims and awards in Tenancy Tribunal application 4998788 — net $2,427.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: failure to maintain - fire damage	$2,400.00	failure to maintain - fire damage
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,427.00
Total payable by Landlord to Tenant	$2,427.00

Order

Property Brokers Limited As Agent For Wairoa Property Investment Ltd must pay [The tenant/s] $2,427.00 immediately, calculated as shown in the table below:

Reasons

Ms Cotter, representing the tenant, and the tenant, Mr Ivanov, and Ms Tabernacle, Mr Whitaker and Mr Klay, for the landlord, all attended the hearing in person.
The tenant has applied for compensation, work order, failure to maintain, quiet enjoyment, breach of Healthy Homes Standards relating to heating and retaliatory notice.
The landlord has applied for termination of the tenancy, notice to quit, refund bond, refund of the application fee.
The landlord’s claims for termination of the tenancy and notice to quit, and the tenant’s claim for retaliatory notice were heard by me by teleconference and were the subject of a Tribunal order dated 21 November 2024, where the landlord’s termination notice was found to be valid and possession of the property was granted to the landlord. The remaining claims were adjourned to be heard in-person.
During the hearing, the tenant amended their claim to add a claim for exemplary damages and the tenant withdrew their claims for compensation, work order, quiet enjoyment and breach of the Healthy Homes Standards relating to hearing.
During the hearing, the landlord withdrew their remaining claim for refund of the bond.
Thus, the only remaining claims to be determined are the tenant’s claims for failure to maintain and for exemplary damages. Failure to maintain
The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, 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.
Under section 45(1)(b) RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problems might be”. 1
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but 1 Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085-1431, 24 February 2019 at [15] should do so in good faith and to remedy a real and significant breach. 2 However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation. 4
There is also failure to repair if the repair is ineffective, non-compliant or unsafe. 5
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 tenant said the landlord failed to maintain the property as follows: Front bedroom window a. The tenant said further that a window in the front bedroom was blown out during some rough weather over Christmas 2024, where the whole frame came out of the wall. The tenant said they notified the property manager of this, but the window was never repaired. However, the tenant could not locate any text or email or message confirming they notified the landlord of this issue. The landlord said they had found a window at the property after the tenant left. However, as the tenant has not provided evidence that they notified the landlord of this issue, or that the landlord was aware of the issue, I dismiss this claim. Fire damage in lounge b. The tenant said there were rats in the walls at the property and believed a rat’s nest in the walls, caused by the landlord’s failure to maintain the property, caused a fire to come inside the property in the lounge, which went up to the ceiling. The tenant said the fire occurred on 4 July 2023, and because of the fire, they then had no heating at the property, there were wires sticking out of the ceiling and there was a huge hole in the ceiling so one wall had to be repaired. The tenant said the wiring also needed to be repaired, as the fire department had advised her to ask the landlord to get the wiring certified after the fire. c. The tenant said they went to the property manager’s office the next day after the fire and told them about the fire and damage, but nobody turned up at the property until around 2 months later. The tenant said they 2 Brough v Housing NZ Ltd NZTT 1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as LJ Hooker [2015] NZTT Manukau 2845 at [9]-[11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016], NZTT Auckland 3314 at [31]. believed the landlord did not want to get the fire damage repaired but wanted them out of the property instead to do renovations. The tenant said none of the fire damage was repaired during the remainder of the tenancy. d. The tenant clarified they moved out of the property on 20 February 2025. The landlord explained that the bailiff was required to remove the tenant from the property on 20 February 2025, but their belongings remained at the property, due to communication issues between the parties. The parties reached agreement at the hearing about dates for the tenant to remove all their belongings from the property, shortly after the hearing. e. The tenant provided photographs taken on the day of the fire of the damage caused to the lounge. The photographs show wiring hanging down from the ceiling and a very large hole left in the ceiling, along with a large burn that went completely through the gib on the wall from the fireplace up to the ceiling where the large hole is, providing a view of bare wooden boards behind it, and some damage to the fireplace. The tenant said they put fadges and a carpet mat across the ceiling hole to try and prevent all of the heat leaving the house from this hole, but the landlord never repaired this huge hole, nor the wiring or any other damage in the lounge from the fire. f. The landlord said they spoke to Wairoa Plumbing immediately after the fire but they did not end up coming, then they made an insurance claim, which took around 3-4 months. The landlord explained there had always been problems with rats at the property, which they attempted to address using rat bait, poison given to the tenants for the rats and other methods of pest removal. They said they were constantly fighting the rat issue at the property. The landlord said they tried to get tradespeople to come to the property from Gisborne also, to deal with the damage. g. The landlord said that, after the fire, they offered $300.00 to the tenant for the lack of heating because of the fire damage and that this was accepted by the tenant. The tenant confirmed during the hearing that they had agreed to this but had not yet received this payment from the landlord. The landlord undertook to pay $300.00 to the tenants after the hearing for the lack of heating. To be clear, this agreement between the parties where the landlord pays the tenant $300.00 compensation for lack of heating after the fire damage is separate from any consideration of exemplary damages for any unlawful act also relating to any fire damage, given the difference between compensatory and exemplary damages, which was explained during the hearing. h. The landlord emphasised how difficult it was to get tradespeople in Wairoa to do repairs and said one of the owners had visited the property within 3 weeks of the fire to view the damage. The landlord said the first they heard the tenant had an issue with the wiring was at the hearing, that this had not been mentioned to them before this. The landlord said that if the wiring had been an issue, the fire department would have alerted the power provider after the fire, but this had not occurred and so they did not believe the wiring issue was a crucial one. i. The landlord acknowledged the large hole in the lounge ceiling caused by the fire had not been repaired by them during the tenancy. They pointed to their termination notice given to the tenant in July 2024, indicating that the landlord wanted to make extensive renovations and tried to have the property vacated for some time. The landlord said they decided it would be better to completely renovate and repair the property, rather than make smaller repairs. The landlord indicated the wall was structurally sound and they were planning to rewire the property in any event, once the tenant left the property. The landlord said they thought the tenant did a good job with their temporary repair, that this was sufficient to hold the issue in their view and, as they had not heard back again later from the tenant, they believed the tenant was happy with the arrangement after the tenant had made these temporary repairs. j. The tenant confirmed they were not happy with their temporary repairs and had expected and waited for the landlord to repair the fire damage. The tenant said they had numerous people coming and going for the landlord’s insurance claim, and expected the damage would be repaired in this process but it never was, for the remainder of the tenancy, until they finally left the property on 20 February 2025. k. I find the evidence of the fire damage in the lounge, which included photographs of a very large hole in the ceiling of the lounge and a large hole up the wall from the fireplace to the ceiling, and the removal of any proper heating source at the property, along with the tenant’s evidence of their makeshift, temporary repair, the landlord’s acknowledgement of knowing about the large hole and not repairing the hole during the tenancy, proves the landlord likely failed to maintain the property in this regard. As such, I find they have committed an unlawful act. l. I do not consider the wiring left hanging from the ceiling as part of the landlord’s failure to maintain the property, as I find there was insufficient evidence provided to indicate the tenant notified the landlord about the wiring issue, or that the landlord knew about the wiring from other sources either, given the landlord denied any knowledge of being so notified, and the lack of additional supporting evidence from the tenant about this. Exemplary damages
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved has that the other party has committed a defined unlawful act.
The property manager said the tenant could not claim exemplary damages for an unlawful act relating to the fire damage, as the fire was in July 2023 and the tenant cannot apply for exemplary damages later than 12 months after the date of commission of the unlawful act, pursuant to section 109(2)(b) Residential Tenancies Act 1986 (“RTA”).
Whilst the fire occurred on 4 July 2023, both parties acknowledged that the damage caused by the fire, which included a very large hole being left in the lounge ceiling, was not repaired for the remainder of the tenancy. An unlawful act, which here is the landlord failing to repair the very large hole in the lounge ceiling caused by the fire, stops once the damage is repaired by the landlord. However, the landlord did not repair this damage at all, well past the fire in July 2023, and so I find there was an ongoing unlawful act for the remainder of the tenancy.
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 issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. There, damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
Similarly, in this situation, the landlord allowed a situation to continue for more than 1.5 years, knowing that not acting would result in the tenant living in a house without proper heating with a very large ceiling hole in the lounge letting out heat from the property. Whilst the landlord said it was difficult to get tradespeople in Wairoa and they were dealing with an insurance claim about the fire, more than 1.5 years is a lengthy period for the tenant to have lived with an unacceptable situation such as this. I also note the evidence of the landlord’s focus on getting the property extensively renovated once vacated, which appeared to detract from their motivation to repair this issue properly whilst the tenant remained living in the property. As such, I find that the landlord committed this unlawful act intentionally.
I have dealt with the intent of the landlord above. As a result of the landlord’s inaction, the tenant had to live in a house where the heat likely escaped through the large hole in the lounge ceiling caused by the fire. It is in the public interest for landlords to ensure that tenancy properties are heated appropriately, and to ensure a tenant’s safety and comfort, especially after an event such as an inside fire at the property. The tenant indicated they were waiting for and expecting the landlord to repair the fire damage, as they were aware of it, and had made an insurance claim. The tenant said they had to live in a situation where their heating was not appropriate and any heating they had likely disappeared through the hole in the lounge ceiling over a lengthy period of time.
The maximum level of exemplary damages is $7,200. In this case I consider an order of one third of the maximum would be indicated. The landlord has committed an unlawful act, and I accept that there has been an impact for the tenant. I cannot see any aggravating or mitigating factors that would argue for a higher or lesser order. I therefore order exemplary damages of $2,400.00. Filing fee
Because the tenant has been successful with the claim I must reimburse the filing fee. Suppression
The tenant did not request name suppression. The landlord requested name suppression. The issue of suppression, initially raised at the first hearing which dealt with the termination of the tenancy, resulting in the Tribunal order dated 21 November 2024, was adjourned to be addressed in this order. The landlord has not been successful with any claim.
Section 95A(4) RTA provides that 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 party of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord said they requested name suppression as they are well-known in business and property circles and do not want to have their reputation affected by a Tribunal decision. This is a common reason for parties to request name suppression but, in my view, is not sufficient evidence of the landlord’s interests outweighing the public interest in publishing their name. Therefore, I do not grant name suppression to the landlord.

Tenancy Tribunal case 4998788 — State of repair at 51 Somerville Street, Wairoa, Wairoa 4108

At a glance

Tenancy Tribunal case 4998788 — State of repair at 51 Somerville Street, Wairoa, Wairoa 4108

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions