What was Tenancy Tribunal case 5005693 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5005693?

Property Damage: $500.00 awarded to tenant; Compensation: Failure to maintain do…: $960.00 awarded to tenant; Compensation: Failure to maintain ki…: $360.00 awarded to tenant; Garden Maintenance: $110.00 awarded to landlord; Rent Arrears: $1,671.42 awarded to landlord; Wooden Shelf: $100.00 awarded to landlord; Water Rates: $60.00 awarded to landlord

What type of tenancy dispute was case 5005693?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 5005693?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11623406-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5005693 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5005693?

Property Damage: $500.00 awarded to tenant; Compensation: Failure to maintain do…: $960.00 awarded to tenant; Compensation: Failure to maintain ki…: $360.00 awarded to tenant; Garden Maintenance: $110.00 awarded to landlord; Rent Arrears: $1,671.42 awarded to landlord; Wooden Shelf: $100.00 awarded to landlord; Water Rates: $60.00 awarded to landlord

What type of tenancy dispute was case 5005693?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 5005693?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11623406-Tribunal_Order_Redacted.pdf.

Unit/Flat 3, 31 Abbotts Way, Remuera, Auckland 1050 Tenancy Tribunal Case 5005693 — Rent arrears

Tenantcheck Insights

Unit/Flat 3, 31 Abbotts Way, Remuera, Auckland 1050 Tenancy Tribunal Case 5005693 — Rent arrears | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5005693 — net $121.42 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 26 August 2024	$1,671.42		Rent arrears to 26 August 2024
Garden maintenance	$110.00		Garden maintenance
Repairs: Wooden shelf	$100.00		Repairs: Wooden shelf
Water rates	$60.00		Water rates
Compensation: Failure to maintain downstairs bathroom		$960.00	Failure to maintain downstairs bathroom
Compensation: Failure to maintain kitchen		$360.00	Failure to maintain kitchen
Compensation: Exemplary damages		$500.00	Exemplary damages
Total award	$1,941.42	$1,820.00
Net award	$121.42
Bond	$1,905.00
Total payable by Tenant to Landlord	$121.42

Claims and awards for application 5005693 — net $121.42 NZD. Verify on MoJ.

Rent arrears to 26 August 2024

Amount: $1,671.42
Awarded to: Landlord
Reason: Rent arrears to 26 August 2024

Garden maintenance

Amount: $110.00
Awarded to: Landlord
Reason: Garden maintenance

Repairs: Wooden shelf

Amount: $100.00
Awarded to: Landlord
Reason: Repairs: Wooden shelf

Water rates

Amount: $60.00
Awarded to: Landlord
Reason: Water rates

Compensation: Failure to maintain downstairs bathroom

Amount: $960.00
Awarded to: Tenant
Reason: Failure to maintain downstairs bathroom

Dismissed claims

Property Damage — Wooden shelf

Claim types — money lines allowed on this order

Exemplary damages Compensation Rent arrears Property damage Water Rates

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s and Tenant’s name and identifying details.
[The tenant/s] to pay [The landlord/s] $121.42 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,905.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $121.42 [The tenant/s]: $1,783.58

Reasons

Both parties attended the hearing on 27 February 2025.
The landlord has applied for rent arrears, outstanding water rates, compensation, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
The tenant has filed a cross-application seeking compensation for breach of the landlord’s obligations, exemplary damages, refund of the bond and reimbursement of the filing fee.
Each party must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish 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 are an important part of discharging this burden.
As noted by the District Court in Katipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ...[L]ike anyone who brings an application before a Tribunal or 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 of 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence at the hearing). I must weigh this evidence to decide what is more likely.
A lot of evidence was given at the hearing. Whilst I might not refer to all of it in this decision, the parties can be assured that I have considered it when reaching my decision.
I deal with the landlord’s claims first and the tenant’s second. LANDLORD’S CLAIMS

RENT ARREARS

The landlord claims the tenant owes $3,180.00 in rent arrears.
The tenant disputes that they owe any money for rent arrears.
There is disagreement between the parties regarding the end date of the tenancy and applicable rent level.
On 6 May 2024, the landlord sent the tenant a notice increasing the rent from $780.00 per week to $900.00 per week. The start date for the increase was 15 July 2024.
The tenant claims there was an agreement between the parties that the rent increase would be deferred for three months to 15 October 2024. The landlord denies there was ever any such agreement.
The tenant further claims that the increase substantially exceeded the market rent for this type of property at the time. The landlord disputes this.
The issues I must determine when considering the landlord’s claim for rent arrears are: a. When did the tenancy end? b. Was there an agreement that the rent increase would be deferred for three months to 15 October 2024? c. If there was no such agreement, did the increase substantially exceed the market rent for this type of property?

When did the tenancy end?

The law

This was a periodic tenancy that ended in late 2024. The law at the time required a tenant to give a landlord 28 days’ notice before ending a periodic tenancy. 1
The landlord claims the tenancy ended on 26 August 2024. The tenant claims it ended on 12 August 2024.
On 29 July 2024, the tenant sent the landlord a notice terminating the tenancy. The end date recorded in the notice is 12 August 2024.
The tenant therefore gave the landlord 14 days’ notice to end the tenancy but claims this was with the consent of the landlord. Evidence and submissions of the parties
The tenant submitted copies of emails between the parties.
In an email to the landlord dated 11 July 2024, the tenant made an offer to the landlord as follows: 1 Residential Tenancies Act 1986, s 51(2B). Good morning [landlord] ... By now you will realise that resorting to the Tenancy Tribunal will not be a one-way exercise, and that they outcome will almost certainly be worse for you than agreeing to my reasonable requests. These are that you will: • Agree to a minimum notice period for me of 14 days rather than in 28 (in practical terms, I will probably give three weeks’ notice to allow enough time to organise any shift) • Not increase the rent from its current level (note – it will only apply for less than three months from your issue of the 90 day notice) • Not require me to pay an additional $360 for additional bond • Will give me a reasonable and positive reference as or when requested. In return I will: • Pay the existing rent in full right up to the date the tenancy terminates • Pay the remaining balance of water rates in full on or before two weeks fore the tenancy terminates of 31 July, whichever is the earlier • Before or by the time I leave the property I will cut back or dig out any plants as you request (this does not include vegetation waste removal) My first request is the most urgent and important...
In a reply email to the tenant dated 11 July 2024, the landlord stated: Good evening [tenant], ... • Before or by the time I leave the property I will cut back or dig out any plants as you request (this does not include vegetation waste removal) – yes • Agree to a minimum notice period for me of 14 days rather than 28 (in practical terms I will probably give three weeks’ notice to allow enough time to organise any shift) • Not increase the rent from its current level (note – it will only apply for less than three months from your issue of the 90-day notice) – yes • Not require me to pay an additional $360 for additional bond – yes • Will give me a reasonable reference as or when requested – yes ...
In their email to the landlord on 11 July 2024, the tenant requested that they be allowed to give the landlord 14 days’ notice to end the tenancy.
The landlord did not comment “yes” besides this request in their reply email to the tenant.
The tenant sought clarification from the landlord in an email dated 15 July 2024, which states: Good morning [landlord] ... The key thing is we need to be able to offer a slightly shorter move-in time for a new rental house to give us an edge over the competition. Several agents have told me that. I assume you have agreed to my request for that, but you didn’t put a yes by it. Unless you say otherwise I assume you have agreed. ...
The landlord did not reply to this email however, there was a phone call between the parties, after which the tenant sent the landlord the following email on 17 July 2024, stating: Hi [landlord] Following your call this morning I need to point out we already have an agreement, as per the emails below. It was and is not conditional on me moving out at the end of July. I have not given formal notice of that. ... Please note the following in my email dated 11 July below: ‘I assume you have agreed to my request for that (meaning a minimum notice period of 14 days rather than 28 days) but you didn’t put a yes by it. Unless you say otherwise I assume you have agreed.’ Therefore I am relying on your implicit agreement to this. Please confirm you will not deduct any rent for any notice of termination by me of less than four weeks but not less than two weeks. ...
The landlord replied to this email on 18 July 2024, but did not address the tenant’s request to end the tenancy by giving 14 days’ notice, as opposed to 28 days.
The tenant claims that by not replying to their request the landlord agreed to allow the tenant to end the tenancy by giving 14 days’ notice rather than 28 days.
The landlord disagrees and claims that they never agreed to allow the tenant to end the tenancy by giving a shorter notice period. Analysis
On the balance of probabilities, I find that the landlord did not agree to allow the tenant to end the tenancy by giving 14 days’ notice, rather than 28 days.
The tenant made a number of requests in their email dated 11 July 2024. The landlord agreed to some of these requests by recording “yes” beside them but did not put a “yes” beside the request to end the tenancy by giving 14 days’ notice.
The tenant followed up with the landlord twice seeking confirmation of the landlord’s agreement, but never received it.
I do not agree with the tenant’s submission that by not specifically answering the tenant’s initial or follow up requests to end the tenancy by giving 14 days’ notice, the landlord thereby agreed to it.
The landlord was very clear in their reply email to the tenant about what requests they agreed to. By not recording a “yes” next to the tenant’s request to end the tenancy by giving 14 days’ notice, the logical conclusion is that the landlord did not agree to it.
I find that the end date of this tenancy was 26 August 2024, which is 28 days after the tenant gave notice to end the tenancy on 29 July 2024. Was there an agreement between the landlord and tenant that the rent increase from $780.00 per week to $900.00 per week would not take effect during this tenancy? Evidence and submissions of the parties
On 6 May 2024, the landlord sent the tenant notice to increase the rent from $780.00 per week to $900.00 per week. The start date for the increase in the notice was 15 July 2024.
The tenant claims the landlord agreed to delay the start date of this increase by three months to 15 October 2024.
The landlord disagrees there was ever any such agreement.
The tenant referred to the landlord’s email dated 11 July 2024 where they replied to the tenant’s request as follows: • Not increase the rent from its current level (note – it will only apply for less than three months from your issue of the 90-day notice) – yes
The landlord submits that this email should not be read in isolation. The landlord gave evidence that there was a relevant prior phone conversation with the tenant. During this conversation, the landlord claims the tenant advised that they had applied for a new tenancy and expected to be successful. The landlord claims the tenant told them the new tenancy would begin at the end of July 2024.
The landlord submits that their email exchange with the tenant on 11 July 2024 should be read as conditional upon the tenant moving out of the premises and into their new tenancy at the end of July 2024. The landlord claims that they only agreed not to implement the rent increase if this occurred. As it did not, the landlord claims that they are entitled to charge the tenant the increased rent amount of $900.00 per week from 15 July 2024.
The tenant accepts that there were phone conversations with the landlord in addition to email exchanges. The tenant denies that they ever advised the landlord that the requests detailed in their email dated 11 July 2024 were conditional upon the tenant moving out of the property and into a new tenancy by the end of July 2024. The tenant claims that the agreement was to not implement the rent increase for three months after the date on which it was due to take effect. Analysis
On the balance of probabilities, I find that the landlord agreed to defer the rent increase by three months to 15 October 2024. I do not find this agreement was conditional upon the tenancy ending at the end of July 2024.
In their reply email to the tenant on 11 July 2024, the landlord specifically writes “yes” next to the tenant’s request that the rent remain at the current level ($780.00 per week). Further, at the beginning of their email, the landlord records that their agreement to the tenant’s request is conditional upon a number of things. They state: Good evening [tenant], ... Coming to the following key points you requested: I’ve put in comments conditional on: -Allowing flooring measurement access during your time on site given 48 hours booking in advance -Allowing painters access to give quote on site give 48 hours booking in advance -Weekly payment of the existing rent in full right up to the date the tenancy terminates -Paying the outstanding amount of water rates stated on the 14days notice in full on or before two weeks before the tenancy terminates or 31 July, whichever is the earlier -No outstanding rent + water rates to be left on Bond refund claim as the Bond only covers any damage that may occur during the final inspection.
The landlord does not mention the tenancy ending in July 2024 as a condition. If it was a condition, I consider it more likely than not that the landlord would have recorded this.
On the balance of probabilities, I find that the parties agreed to unconditionally defer the start date for the rent increase by three months to 15 October 2024. Did the increase in rent to $900.00 substantially exceed the market rent for this type of property at the relevant time?
I have found that the landlord agreed to defer the start date for the rent increase from 15 July 2024 to 15 October 2024.
I have also found that this tenancy ended on 26 August 2024, which is before the rent increase took effect.
Therefore, I do not need to consider whether the rent increase substantially exceeded the market rent for this type of property at the relevant time. Conclusion as to rent arrears
The tenant paid rent of $780.00 per week up to 11 August 2024. This leaves the following weeks owing by the tenant: a. 12/08/2024 – 18/08/2024 b. 19/08/2024 – 25/08/2024 c. 26/08/2024
This equates to a total of $1,671.42 in rent arrears. The landlord’s claim for rent arrears is granted in full for this amount.

WATER RATES

The tenant did not dispute the landlord’s claim for outstanding water rates of $60.00, which I grant in full.

GARDENING

The law

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy. See section 40(1)(e)(iii) Residential Tenancies Act 1986 (RTA).
“Premises” includes “any land and appurtenances, other than facilities.” See section 2 RTA.
The requirement to leave the premises reasonably clean and tidy relates to the lawns and gardens, as well as the inside of the property. Evidence and submissions of the parties
The landlord claims the tenant did not leave the premises reasonably clean and tidy, because there was a large amount of garden waste left outside the property.
The landlord submitted a photograph which shows a relatively large pile of garden waste.
The landlord seeks compensation of $110.00 to remove the garden waste. The landlord submitted an invoice for $110.00 from Green Waste NZ.
The tenant accepts that they left the garden waste but claims this was agreed to by the landlord.
The tenant gave evidence that they planted a number of plants at the property during the tenancy. The tenant claims the landlord asked them to remove the plants at the end of the tenancy, which they did. The tenant claims they were not required to remove the plants and only did so at the request of the landlord and on the understanding that they did not need to dispose of the green waste.
The tenant referred to the reply email from the landlord dated 11 July 2024 where the landlord states: Good evening [tenant] ... • Before or by the time I leave the property I will cut back or dig out any plants as you request (this does not include vegetation waste removal) – Yes
The landlord gave evidence that the tenant planted a number of plants during the tenancy, which they asked to take with them at the end. The landlord claims they did not ask the tenant to remove any plants. The landlord accepts that they allowed the tenant to remove some plants, but submits this was at the request of the tenant. The landlord denies agreeing to allowing the tenant not to dispose of any green waste. Analysis
On the balance of probabilities, I find that the landlord did not ask the tenant to remove any plants. I find it more likely that the tenant requested to remove some plants from the property. I find there was no agreement that the tenant would not need to dispose of green waste if they chose to take some plants with them.
The beginning of the email sent to the tenant on 11 July 2024 states: Good evening [tenant] ... In terms of the garden, I would please ask to leave it as it is. If there are plants you like to take. Please discuss with me and we need to make sure the ground is covered, no mess showing. As per your following statement: • I have no obligation to cut back or remove any plants (including plants I planted), or remove any vegetation waste from the property.
From this part of the email, the landlord does not ask the tenant to remove any plants. The landlord grants the tenant permission to remove some plants with the landlord’s prior consent and is quite clearly concerned about any mess being left behind.
The portion of the landlord’s email referred to by the tenant does not help to prove that the landlord asked the tenant to remove any plants. It simply reflects an agreement between the parties that if the landlord asked the tenant to remove any plants, the tenant would do so and would not be required to dispose of any green waste. I have found that the landlord never asked the tenant to remove any plants and any plants were removed at the tenant’s request, thereby requiring them to dispose of the green waste.
The landlord’s claim for compensation of $110.00 for green waste disposal is granted in full.

DAMAGE

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.
In Nixon v Geal-Otter DC North Shore, 30 January 1996, [1996] RTHNZ 2, 1996 WL 35049225, his Honour Judge Thorburn held: Adjudicators and the Court must be careful to recognise that in any tenancy there will be a deterioration of condition because of fair wear and tear. It can be no other way. Mere use of premises will by the law of inevitability produce a deterioration of condition.
The landlord claims the tenant is responsible for the following damage: a. Marks to the walls; and b. Broken wooden shelf.
I deal with each issue in turn below. Walls
The landlord claims the tenant hung paintings and photographs on the walls of the property without permission. The landlord states the tenant used a mixture of permanent and non-permanent hooks to do this. When removing the paintings and photographs, the landlord claims paint has peeled away from the walls. The landlord claims there are at least 20 marks to the walls throughout the property. The landlord also claims there are some dark marks mirroring the outline of the frames where some of the paintings hung.
The landlord submitted photographs of the walls. These photographs show a some relatively small marks to the walls, as well as some hooks still in the walls. They also show some faint outlines in the shape of a picture frame where paintings used to hang.
The landlord has had the entire inside of the property repainted at a cost of just over $7,000.00. The landlord had a quote to attend to the repairs caused by the tenant for $724.50 and seeks compensation for this amount.
The tenant claims the marks are fair wear and tear. Further, the tenant claims that the landlord always intended to repaint the inside of the property, as they were planning on selling it.
It is important to note that even though the tenant claims the damage is fair wear and tear, the tenant does not have to prove that this is the case. The onus of proving that the damage is not fair wear and tear rests with the landlord. 2 The landlord must first establish that this is the case before the Tribunal can consider whether the damage is careless or intentional. Analysis
I consider the marks to the walls to be fair wear and tear.
This tenancy was 9 years long and the marks are relatively small. Hanging photographs and paintings on the walls inside a property is reasonable use. The tenant was entitled to do this as part of their quiet enjoyment of the property, even if they did not have the express permission of the landlord. The landlord did not require the tenant to remove the paintings or photographs during the tenancy as part of routine inspections.
It is predictable that some small marks will be sustained to the walls as a result of everyday living in a tenancy as long as this one, especially if paintings and photographs are hung for approximately 9 years.
The hanging of paintings and photographs on the walls by the tenant is reasonable use. The marks to the walls are the result of the ordinary operation of natural forces.
The landlord’s claim for compensation to repair the walls is dismissed. Wooden shelf
The landlord claims the tenant is responsible for breaking the leg of a wooden shelving unit in the attic of the property. 2 Nixon v Geal-Olter (216/94 North Shore District Court December 1995).
The tenant accepts that the shelving unit was broken towards the end of the tenancy and suspects the people who helped him move his property might have accidentally broken it.
The tenant is responsible for the actions of the movers, as they were at the property with the tenant’s permission.
On the balance of probabilities, I find that the wooden shelving unit was broken during the tenancy by movers who were assisting the tenant. I consider the damage to be careless rather than intentional.
The landlord gave evidence that the shelving unit was “probably a cheap one” purchased from Mitre 10 or Bunnings. It was new at the beginning of the tenancy and 9 years old at the end.
The landlord seeks compensation of $200.00 to replace the shelving unit or contribute towards its disposal. The landlord did not submit any evidence to prove this was the replacement cost of the shelving unit.
The landlord submitted a quote to hire a bin big enough to dispose of the shelving unit. The quote is for $380.00.
In all the circumstances of this case, consider $100.00 to be a reasonable amount of compensation the tenant should pay the landlord to replace the wooden shelving unit or contribute towards its disposal.
In determining the level of compensation, I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The amount ordered is proved. TENANT’S CLAIMS

FAILURE TO MAINTAIN

The law

Section 45(1)(b) RTA states: (1) The landlord shall – ... (a) Provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and ...
It is well settled that a landlord’s obligations under section 45(1)(b) RTA are to investigate and repair a defect brought to their attention within a timeframe that is reasonable in the circumstances. What is reasonable depends upon the gravity of the problem and objective attempts made by the landlord to investigate and remedy the problem. 3
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 or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach. 4 However, notice from the tenant is not required if the landlord knew of the need to repair or the need for repair was apparent from observation. 5
There is a failure to repair if the repair is ineffective, non-compliant or unsafe. 6
The tenant claims the landlord failed to remedy the following issues within a reasonable timeframe: a. Leak in downstairs bathroom b. Leak in kitchen c. Mould in downstairs bedroom
I deal with the alleged leaks first, before considering the claim in relation to mould. Leak in downstairs bathroom and kitchen
The tenant had flatmates to help them pay the rent.
The tenant claims there was a leak in the downstairs bathroom and kitchen. In support of this, the tenant submitted emails from three flatmates who lived at the property and occupied the bedroom downstairs.
The first email is from “Rohit” who lived downstairs from 1 September 2023 – 2 October 2023. It states: He [tenant] 3 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 4 Brough v Housing NZ Ltd NZTT 1848/1, 27 May 2002 at [13]. 5 Barfoot & Thompson Ltd v Case DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 6 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. ... We have not had a good experience living in the house with disgusting carpet condition and the room full of black mould and several water leaks during our stay. Despite raising these issues with you number of times affecting our health and safety, no action was taken to remedy them and prompted us to move out...
The second email is from “Clem and Hillel” who lived downstairs from 26 October 2023 – 8 February 2024. They state: Hello [tenant] ... About the tenancy matter: yes we hereby confirm that we experienced episodes of floor flooding both in the kitchen and close to the toilets in our bathroom during our stay between November 2023 and early February 2024. We remember a more extensive flooding (both in terms of frequency and volume of water) in the kitchen than in the bathroom...
The third email is from “Frank” who lived downstairs from 21 February 2024 – 10 August 2024. It states: Hi [tenant] ... The following are the main problems we found.
Water leakage in my bathroom and in the downstairs bedroom. The water leaks from somewhere and seeps up from the rubber tiles. There have been 3 times when significant leaks occurred, and I had to mop my bathroom for half and hour and many small leaks. I’ve met a plumber once, but the problem remains...
Water leakage in the kitchen sometimes. It’s not a big leakage like in my bathroom, but it annoys you to clean it whenever it happens. ...
The tenant did not call any of their previous flatmates to give oral evidence at the hearing.
The tenant submitted copies of text messages they had transcribed between the parties about the leaks in the downstairs bathroom and kitchen. The tenant first notified the landlord about the leak in the bathroom on 24 June 2023 in a text message stating: On another issue – downstairs bathroom floor was flooded just now. Ronnie is mopping it up No sign of where the water had come from. Do you need a plumber to come too? [tenant]
On 8 July 2023, the landlord sent the tenant a text message stating: Thanks [tenant]!...In terms of your flatmates – make it clear that the leak will get looked at at a later stage. It’s a pre-existing condition, we do what we can. Up to them how they want to take from this point. We only deal with you [tenant], not them!...
On 15 July 2023, the tenant sent the landlord another text message about water on the floor in the bathroom downstairs again.
On 17 January 2024, the tenant sent the landlord a text message about water on the kitchen floor stating: Hi [landlord], we have a problem with water on the kitchen floor. It doesn’t seem to be coming from any of the appliances or the sink area, or the wastemaster. It seems to be coming up through the tiles...this seems to be happening every 2 or 3 days.
The tenant claims that a plumber was only sent to the address to investigate the leak in the downstairs bathroom and kitchen in May 2024.
The landlord accepts that they did not send a plumber to investigate the complaints of a leak until 26 May 2024.
The landlord claims there was no leak in the downstairs bathroom or kitchen. The landlord submitted an email from the plumber who concludes: Hi [landlord] ... Kitchen sink: When I went to this job, I cleared out the cupboard below the sink and with a trouble light, I had a good look to see why it was so wet. I ran water down the sink but could not find any fault with the waste pipes. I also inspected the water supply pipes and could not find any fault with them either. I did notice water had collected on the underside of the stainless steel sink insert. The seal around the insert, appeared to be sound and watertight. At this stage I suspected the bay window above the sink of not being watertight. Bathroom Vanity I did the same with the Vanity, ran water and checked waste pipes and water pipes. I could not see any problems with the plumbing. The cupboard doors are all swollen from being damp and the only way that I can see that happening is when the Vanity has overflowed.
The landlord did not call the plumber as a witness to give oral evidence at the hearing.
The landlord referred to a photograph of the vanity submitted by the tenant and pointed out that it was swollen at the top. The landlord claims this supports the plumbers’ conclusion that the vanity sink must have overflowed. The landlord claims this could only have happened if the tenant’s flatmate had caused the sink to overflow.
The landlord submits that the complaints about a leak in the downstairs bathroom occurred around the time of a rent increase.
The first notice of a rent increase was sent on 4 May 2023 with an effective start date of 10 July 2023. The rent increased from $710.00 to $780.00 per week. The landlord notes that the first complaint about a “leak” in the downstairs bathroom occurred on 24 June 2023, which is shortly after the tenant received notice of the rent increase.
The tenant claims they had no problem with the rent increase from $710.00 per week to $780.00 per week. Analysis
The evidence is finely balanced however, on the balance of probabilities, I find that there was a leak in the downstairs bathroom and kitchen that required investigation by the landlord.
The tenant submitted emails from three tenants who lived downstairs confirming that they experienced leaks in the downstairs bathroom. Two of these flatmates also confirmed there was a leak in the kitchen.
The fact that three separate groups of people claim there was a leak in the downstairs bathroom and two of them confirm there was a leak in the kitchen enhances the credibility of these claims by the tenant.
From their email, the plumber appears to have only investigated the pipes in the vanity in the downstairs bathroom. There is no mention of investigating other sources of a potential leak such as the toilet or general plumbing pipe system. The email from “Frank” states that water appeared to seep up from the rubber tiles. The email from “Clem and Hillel” refers to the water as being close to the toilet. Whilst the landlord has ruled out the possibility that the leak came from the vanity, I do not consider that they have ruled out other potential sources of the leak.
The plumber also only appears to have investigated the pipes in the sink as the potential source of the leak in the kitchen. The email does not mention investigating other appliances such as the dishwasher or the general plumping pipe system in the kitchen. The tenant’s text to the landlord on 17 January 2024 states that the leak appears to be coming up through the tiles. Whilst the landlord has ruled out the possibility that the leak came from the kitchen sink, I do not consider that they have ruled out other potential sources of the leak.
The tenant submitted a transcribed copy of a text message sent by the landlord regarding the leak in the downstairs bathroom, which states: Thanks [tenant]!...In terms of your flatmates – make it clear that the leak will get looked at at later stage. It’s a pre-existing condition, we do what we can. Up to the how they want to take from this point. We only deal with you [tenant], not them!...
From this text message, it appears that the landlord had encountered an issue with a leak in the downstairs bathroom before. This further enhances the credibility of the tenant’s claim.
Other text messages from between the parties make it clear that the landlord considered the idea of investigating and repairing the leak in the downstairs bathroom to be a big job. For example, the tenant submitted a transcribed copy of a text message sent by the landlord on 5 November 2023 stating: To replace the vanity will be a big job! As the rest of bathroom will need a complete done up! A rent review will be on the card due to the renovation! The bathroom will be out for at least a couple of months! I will check that timeframe out!
From this text message, it appears that the landlord was hesitant to properly investigate the issue, because they did not want to have to undertake significant work in respect of the bathroom.
Whilst the complaint about the leak in the bathroom came shortly after the tenant received notice of a rent increase, I do not consider that the complaint was motivated by this.
The complaint about a leak in the kitchen occurred on 17 January 2024 and was not closely connected with any rent increase.
On the balance of probabilities, I find that there was a leak in the downstairs bathroom and kitchen.
The leak in the downstairs bathroom was first reported to the landlord on 24 June 2023. A plumber was sent to the address on 26 May 2024, some 11 months later. A delay of this length is unreasonable.
The leak in the kitchen was first reported to the landlord on 17 January 2024. A plumber was sent to the address on 26 May 2024, some 4 months later. A delay of this length is also unreasonable.
I consider compensation of $960.00 is reasonable in respect of the landlord’s failure to investigate and repair the leak in the downstairs bathroom within a reasonable timeframe. This equates to approximately $20.00 per week from the time the issue was first reported to the landlord to the time a plumber was sent to the address.
I consider compensation of $360.00 is reasonable in respect of the landlord’s failure to investigate and repair the leak in the kitchen within a reasonable timeframe. This also equates to approximately $20.00 per week from the time the issue was first reported to the landlord to the time a plumber visited the address. Mould
The tenant claims there was mould on the ceiling of the downstairs bedroom that was reported to the landlord who did nothing to remedy the problem.
The tenant gave evidence that the issue was raised verbally with the landlord by a flatmate some time in 2022 – 2023. The tenant claims the landlord offered to pay for wipes so that the flatmate could remove the mould. The tenant did not submit any written communication to the landlord about the mould.
The tenant submitted a photograph of the mould on the bedroom ceiling.
The landlord gave evidence that a former flatmate mentioned the presence of mould to the landlord once when the landlord visited the property to complete some pruning.
The landlord claims they visited the flatmate’s bedroom to look at the mould but could not see any at the time. The landlord claims the flatmate was only in the property for approximately one month before leaving. The landlord gave evidence that the issue was never raised with them again and they did not believe it to be an ongoing problem.
I find that the tenant has not proven their claim in relation to mould in the downstairs bedroom. There is insufficient evidence to prove when the issue was first raised with the landlord. The tenant did not call the flatmate who reported the issue to the landlord as a witness.
I find that the presence of mould in the downstairs bedroom was only raised with the landlord briefly and informally by a former flatmate. This flatmate was only in the property for approximately one month. The landlord investigated the issue immediately when it was reported but could not see any mould. The issue was never raised with the landlord again and in the transcribed copies of text messages between the parties, it is never mentioned.
In these circumstances, I do not think it is fair for the tenant to now claim that the landlord failed to investigate and remedy the mould in the downstairs bedroom within a reasonable timeframe. The issue was not brought to the landlord’s attention sufficiently.
The tenant’s claim in relation to the mould in the downstairs bedroom is dismissed.

EXEMPLARY DAMAGES

The law

I have found that the landlord breached their obligations under section 45(1)(b) RTA in respect of a leak in the kitchen and downstairs bathroom.
Failure by a landlord to comply with section 45(1)(b) RTA is an unlawful act for which exemplary damages up to $7,200.00 may be awarded. 7
Section 109 of the RTA confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award. 7 Residential Tenancies Act 1986, section 45(1A) and Schedule 1A.
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.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal that: 8 Before an award for 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.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages. Analysis
I consider that the landlord acted intentionally in not hiring a plumber to investigate the leak in the kitchen and downstairs bathroom within a reasonable timeframe. The tenant reported the leaks to the landlord in writing and followed up with the landlord a number of times. It is quite clear that the landlord was aware of the issue and chose to do nothing about it. 8 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92
The tenant gave evidence that the landlord’s delay in attending to the leaks in the downstairs bathroom and kitchen caused friction between them and their flatmates. The tenant gave evidence that the inaction of the landlord caused flatmates to leave, which meant the tenant had to pay more towards the rent whilst looking for a replacement flatmate.
There is a public interest in ensuring that landlords investigate and remedy defects brought to their attention within a reasonable timeframe.
There was a considerable delay by the landlord in this case to investigate the leak in the downstairs bathroom and kitchen.
In all of the circumstances, I consider it is just to make an award of exemplary damages in this case.
In setting the amount the landlord must pay to the tenant by way of exemplary damages, I bear in mind the fact that the majority of the tenant’s submissions regarding their claim for exemplary damages focussed on the effect the rent increase had on them. As a result of my findings under the landlord’s claim for rent arrears, I do not need to consider whether the rent increase from $780.00 to $900.00 substantially exceeded the market rent for this type of property at the time. Even if I found that it did, this is not an unlawful act for which exemplary damages may be sought under the RTA. If a tenant thinks that a rent increase substantially exceeds the market rent, then the appropriate course of action is to file an application under section 25 RTA with the Tribunal.
In all of the circumstances, I order the landlord to pay the tenant $500.00 in exemplary damages for their breach of section 45(1)(b) RTA. FILING FEE & NAME SUPPRESSION
Both parties have been substantially successful with their claims. Therefore, I do not order either party to reimburse the filing fee and I grant both parties’ request for name suppression.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5005693 — net $121.42 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 26 August 2024	$1,671.42		Rent arrears to 26 August 2024
Garden maintenance	$110.00		Garden maintenance
Repairs: Wooden shelf	$100.00		Repairs: Wooden shelf
Water rates	$60.00		Water rates
Compensation: Failure to maintain downstairs bathroom		$960.00	Failure to maintain downstairs bathroom
Compensation: Failure to maintain kitchen		$360.00	Failure to maintain kitchen
Compensation: Exemplary damages		$500.00	Exemplary damages
Total award	$1,941.42	$1,820.00
Net award	$121.42
Bond	$1,905.00
Total payable by Tenant to Landlord	$121.42

Claims and awards for application 5005693 — net $121.42 NZD. Verify on MoJ.

Rent arrears to 26 August 2024

Amount: $1,671.42
Awarded to: Landlord
Reason: Rent arrears to 26 August 2024

Garden maintenance

Amount: $110.00
Awarded to: Landlord
Reason: Garden maintenance

Repairs: Wooden shelf

Amount: $100.00
Awarded to: Landlord
Reason: Repairs: Wooden shelf

Water rates

Amount: $60.00
Awarded to: Landlord
Reason: Water rates

Compensation: Failure to maintain downstairs bathroom

Amount: $960.00
Awarded to: Tenant
Reason: Failure to maintain downstairs bathroom

Dismissed claims

Property Damage — Wooden shelf

Claim types — money lines allowed on this order

Exemplary damages Compensation Rent arrears Property damage Water Rates

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s and Tenant’s name and identifying details.
[The tenant/s] to pay [The landlord/s] $121.42 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,905.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $121.42 [The tenant/s]: $1,783.58

Reasons

Both parties attended the hearing on 27 February 2025.
The landlord has applied for rent arrears, outstanding water rates, compensation, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
The tenant has filed a cross-application seeking compensation for breach of the landlord’s obligations, exemplary damages, refund of the bond and reimbursement of the filing fee.
Each party must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish 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 are an important part of discharging this burden.
As noted by the District Court in Katipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ...[L]ike anyone who brings an application before a Tribunal or 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 of 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence at the hearing). I must weigh this evidence to decide what is more likely.
A lot of evidence was given at the hearing. Whilst I might not refer to all of it in this decision, the parties can be assured that I have considered it when reaching my decision.
I deal with the landlord’s claims first and the tenant’s second. LANDLORD’S CLAIMS

RENT ARREARS

The landlord claims the tenant owes $3,180.00 in rent arrears.
The tenant disputes that they owe any money for rent arrears.
There is disagreement between the parties regarding the end date of the tenancy and applicable rent level.
On 6 May 2024, the landlord sent the tenant a notice increasing the rent from $780.00 per week to $900.00 per week. The start date for the increase was 15 July 2024.
The tenant claims there was an agreement between the parties that the rent increase would be deferred for three months to 15 October 2024. The landlord denies there was ever any such agreement.
The tenant further claims that the increase substantially exceeded the market rent for this type of property at the time. The landlord disputes this.
The issues I must determine when considering the landlord’s claim for rent arrears are: a. When did the tenancy end? b. Was there an agreement that the rent increase would be deferred for three months to 15 October 2024? c. If there was no such agreement, did the increase substantially exceed the market rent for this type of property?

When did the tenancy end?

The law

This was a periodic tenancy that ended in late 2024. The law at the time required a tenant to give a landlord 28 days’ notice before ending a periodic tenancy. 1
The landlord claims the tenancy ended on 26 August 2024. The tenant claims it ended on 12 August 2024.
On 29 July 2024, the tenant sent the landlord a notice terminating the tenancy. The end date recorded in the notice is 12 August 2024.
The tenant therefore gave the landlord 14 days’ notice to end the tenancy but claims this was with the consent of the landlord. Evidence and submissions of the parties
The tenant submitted copies of emails between the parties.
In an email to the landlord dated 11 July 2024, the tenant made an offer to the landlord as follows: 1 Residential Tenancies Act 1986, s 51(2B). Good morning [landlord] ... By now you will realise that resorting to the Tenancy Tribunal will not be a one-way exercise, and that they outcome will almost certainly be worse for you than agreeing to my reasonable requests. These are that you will: • Agree to a minimum notice period for me of 14 days rather than in 28 (in practical terms, I will probably give three weeks’ notice to allow enough time to organise any shift) • Not increase the rent from its current level (note – it will only apply for less than three months from your issue of the 90 day notice) • Not require me to pay an additional $360 for additional bond • Will give me a reasonable and positive reference as or when requested. In return I will: • Pay the existing rent in full right up to the date the tenancy terminates • Pay the remaining balance of water rates in full on or before two weeks fore the tenancy terminates of 31 July, whichever is the earlier • Before or by the time I leave the property I will cut back or dig out any plants as you request (this does not include vegetation waste removal) My first request is the most urgent and important...
In a reply email to the tenant dated 11 July 2024, the landlord stated: Good evening [tenant], ... • Before or by the time I leave the property I will cut back or dig out any plants as you request (this does not include vegetation waste removal) – yes • Agree to a minimum notice period for me of 14 days rather than 28 (in practical terms I will probably give three weeks’ notice to allow enough time to organise any shift) • Not increase the rent from its current level (note – it will only apply for less than three months from your issue of the 90-day notice) – yes • Not require me to pay an additional $360 for additional bond – yes • Will give me a reasonable reference as or when requested – yes ...
In their email to the landlord on 11 July 2024, the tenant requested that they be allowed to give the landlord 14 days’ notice to end the tenancy.
The landlord did not comment “yes” besides this request in their reply email to the tenant.
The tenant sought clarification from the landlord in an email dated 15 July 2024, which states: Good morning [landlord] ... The key thing is we need to be able to offer a slightly shorter move-in time for a new rental house to give us an edge over the competition. Several agents have told me that. I assume you have agreed to my request for that, but you didn’t put a yes by it. Unless you say otherwise I assume you have agreed. ...
The landlord did not reply to this email however, there was a phone call between the parties, after which the tenant sent the landlord the following email on 17 July 2024, stating: Hi [landlord] Following your call this morning I need to point out we already have an agreement, as per the emails below. It was and is not conditional on me moving out at the end of July. I have not given formal notice of that. ... Please note the following in my email dated 11 July below: ‘I assume you have agreed to my request for that (meaning a minimum notice period of 14 days rather than 28 days) but you didn’t put a yes by it. Unless you say otherwise I assume you have agreed.’ Therefore I am relying on your implicit agreement to this. Please confirm you will not deduct any rent for any notice of termination by me of less than four weeks but not less than two weeks. ...
The landlord replied to this email on 18 July 2024, but did not address the tenant’s request to end the tenancy by giving 14 days’ notice, as opposed to 28 days.
The tenant claims that by not replying to their request the landlord agreed to allow the tenant to end the tenancy by giving 14 days’ notice rather than 28 days.
The landlord disagrees and claims that they never agreed to allow the tenant to end the tenancy by giving a shorter notice period. Analysis
On the balance of probabilities, I find that the landlord did not agree to allow the tenant to end the tenancy by giving 14 days’ notice, rather than 28 days.
The tenant made a number of requests in their email dated 11 July 2024. The landlord agreed to some of these requests by recording “yes” beside them but did not put a “yes” beside the request to end the tenancy by giving 14 days’ notice.
The tenant followed up with the landlord twice seeking confirmation of the landlord’s agreement, but never received it.
I do not agree with the tenant’s submission that by not specifically answering the tenant’s initial or follow up requests to end the tenancy by giving 14 days’ notice, the landlord thereby agreed to it.
The landlord was very clear in their reply email to the tenant about what requests they agreed to. By not recording a “yes” next to the tenant’s request to end the tenancy by giving 14 days’ notice, the logical conclusion is that the landlord did not agree to it.
I find that the end date of this tenancy was 26 August 2024, which is 28 days after the tenant gave notice to end the tenancy on 29 July 2024. Was there an agreement between the landlord and tenant that the rent increase from $780.00 per week to $900.00 per week would not take effect during this tenancy? Evidence and submissions of the parties
On 6 May 2024, the landlord sent the tenant notice to increase the rent from $780.00 per week to $900.00 per week. The start date for the increase in the notice was 15 July 2024.
The tenant claims the landlord agreed to delay the start date of this increase by three months to 15 October 2024.
The landlord disagrees there was ever any such agreement.
The tenant referred to the landlord’s email dated 11 July 2024 where they replied to the tenant’s request as follows: • Not increase the rent from its current level (note – it will only apply for less than three months from your issue of the 90-day notice) – yes
The landlord submits that this email should not be read in isolation. The landlord gave evidence that there was a relevant prior phone conversation with the tenant. During this conversation, the landlord claims the tenant advised that they had applied for a new tenancy and expected to be successful. The landlord claims the tenant told them the new tenancy would begin at the end of July 2024.
The landlord submits that their email exchange with the tenant on 11 July 2024 should be read as conditional upon the tenant moving out of the premises and into their new tenancy at the end of July 2024. The landlord claims that they only agreed not to implement the rent increase if this occurred. As it did not, the landlord claims that they are entitled to charge the tenant the increased rent amount of $900.00 per week from 15 July 2024.
The tenant accepts that there were phone conversations with the landlord in addition to email exchanges. The tenant denies that they ever advised the landlord that the requests detailed in their email dated 11 July 2024 were conditional upon the tenant moving out of the property and into a new tenancy by the end of July 2024. The tenant claims that the agreement was to not implement the rent increase for three months after the date on which it was due to take effect. Analysis
On the balance of probabilities, I find that the landlord agreed to defer the rent increase by three months to 15 October 2024. I do not find this agreement was conditional upon the tenancy ending at the end of July 2024.
In their reply email to the tenant on 11 July 2024, the landlord specifically writes “yes” next to the tenant’s request that the rent remain at the current level ($780.00 per week). Further, at the beginning of their email, the landlord records that their agreement to the tenant’s request is conditional upon a number of things. They state: Good evening [tenant], ... Coming to the following key points you requested: I’ve put in comments conditional on: -Allowing flooring measurement access during your time on site given 48 hours booking in advance -Allowing painters access to give quote on site give 48 hours booking in advance -Weekly payment of the existing rent in full right up to the date the tenancy terminates -Paying the outstanding amount of water rates stated on the 14days notice in full on or before two weeks before the tenancy terminates or 31 July, whichever is the earlier -No outstanding rent + water rates to be left on Bond refund claim as the Bond only covers any damage that may occur during the final inspection.
The landlord does not mention the tenancy ending in July 2024 as a condition. If it was a condition, I consider it more likely than not that the landlord would have recorded this.
On the balance of probabilities, I find that the parties agreed to unconditionally defer the start date for the rent increase by three months to 15 October 2024. Did the increase in rent to $900.00 substantially exceed the market rent for this type of property at the relevant time?
I have found that the landlord agreed to defer the start date for the rent increase from 15 July 2024 to 15 October 2024.
I have also found that this tenancy ended on 26 August 2024, which is before the rent increase took effect.
Therefore, I do not need to consider whether the rent increase substantially exceeded the market rent for this type of property at the relevant time. Conclusion as to rent arrears
The tenant paid rent of $780.00 per week up to 11 August 2024. This leaves the following weeks owing by the tenant: a. 12/08/2024 – 18/08/2024 b. 19/08/2024 – 25/08/2024 c. 26/08/2024
This equates to a total of $1,671.42 in rent arrears. The landlord’s claim for rent arrears is granted in full for this amount.

WATER RATES

The tenant did not dispute the landlord’s claim for outstanding water rates of $60.00, which I grant in full.

GARDENING

The law

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy. See section 40(1)(e)(iii) Residential Tenancies Act 1986 (RTA).
“Premises” includes “any land and appurtenances, other than facilities.” See section 2 RTA.
The requirement to leave the premises reasonably clean and tidy relates to the lawns and gardens, as well as the inside of the property. Evidence and submissions of the parties
The landlord claims the tenant did not leave the premises reasonably clean and tidy, because there was a large amount of garden waste left outside the property.
The landlord submitted a photograph which shows a relatively large pile of garden waste.
The landlord seeks compensation of $110.00 to remove the garden waste. The landlord submitted an invoice for $110.00 from Green Waste NZ.
The tenant accepts that they left the garden waste but claims this was agreed to by the landlord.
The tenant gave evidence that they planted a number of plants at the property during the tenancy. The tenant claims the landlord asked them to remove the plants at the end of the tenancy, which they did. The tenant claims they were not required to remove the plants and only did so at the request of the landlord and on the understanding that they did not need to dispose of the green waste.
The tenant referred to the reply email from the landlord dated 11 July 2024 where the landlord states: Good evening [tenant] ... • Before or by the time I leave the property I will cut back or dig out any plants as you request (this does not include vegetation waste removal) – Yes
The landlord gave evidence that the tenant planted a number of plants during the tenancy, which they asked to take with them at the end. The landlord claims they did not ask the tenant to remove any plants. The landlord accepts that they allowed the tenant to remove some plants, but submits this was at the request of the tenant. The landlord denies agreeing to allowing the tenant not to dispose of any green waste. Analysis
On the balance of probabilities, I find that the landlord did not ask the tenant to remove any plants. I find it more likely that the tenant requested to remove some plants from the property. I find there was no agreement that the tenant would not need to dispose of green waste if they chose to take some plants with them.
The beginning of the email sent to the tenant on 11 July 2024 states: Good evening [tenant] ... In terms of the garden, I would please ask to leave it as it is. If there are plants you like to take. Please discuss with me and we need to make sure the ground is covered, no mess showing. As per your following statement: • I have no obligation to cut back or remove any plants (including plants I planted), or remove any vegetation waste from the property.
From this part of the email, the landlord does not ask the tenant to remove any plants. The landlord grants the tenant permission to remove some plants with the landlord’s prior consent and is quite clearly concerned about any mess being left behind.
The portion of the landlord’s email referred to by the tenant does not help to prove that the landlord asked the tenant to remove any plants. It simply reflects an agreement between the parties that if the landlord asked the tenant to remove any plants, the tenant would do so and would not be required to dispose of any green waste. I have found that the landlord never asked the tenant to remove any plants and any plants were removed at the tenant’s request, thereby requiring them to dispose of the green waste.
The landlord’s claim for compensation of $110.00 for green waste disposal is granted in full.

DAMAGE

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.
In Nixon v Geal-Otter DC North Shore, 30 January 1996, [1996] RTHNZ 2, 1996 WL 35049225, his Honour Judge Thorburn held: Adjudicators and the Court must be careful to recognise that in any tenancy there will be a deterioration of condition because of fair wear and tear. It can be no other way. Mere use of premises will by the law of inevitability produce a deterioration of condition.
The landlord claims the tenant is responsible for the following damage: a. Marks to the walls; and b. Broken wooden shelf.
I deal with each issue in turn below. Walls
The landlord claims the tenant hung paintings and photographs on the walls of the property without permission. The landlord states the tenant used a mixture of permanent and non-permanent hooks to do this. When removing the paintings and photographs, the landlord claims paint has peeled away from the walls. The landlord claims there are at least 20 marks to the walls throughout the property. The landlord also claims there are some dark marks mirroring the outline of the frames where some of the paintings hung.
The landlord submitted photographs of the walls. These photographs show a some relatively small marks to the walls, as well as some hooks still in the walls. They also show some faint outlines in the shape of a picture frame where paintings used to hang.
The landlord has had the entire inside of the property repainted at a cost of just over $7,000.00. The landlord had a quote to attend to the repairs caused by the tenant for $724.50 and seeks compensation for this amount.
The tenant claims the marks are fair wear and tear. Further, the tenant claims that the landlord always intended to repaint the inside of the property, as they were planning on selling it.
It is important to note that even though the tenant claims the damage is fair wear and tear, the tenant does not have to prove that this is the case. The onus of proving that the damage is not fair wear and tear rests with the landlord. 2 The landlord must first establish that this is the case before the Tribunal can consider whether the damage is careless or intentional. Analysis
I consider the marks to the walls to be fair wear and tear.
This tenancy was 9 years long and the marks are relatively small. Hanging photographs and paintings on the walls inside a property is reasonable use. The tenant was entitled to do this as part of their quiet enjoyment of the property, even if they did not have the express permission of the landlord. The landlord did not require the tenant to remove the paintings or photographs during the tenancy as part of routine inspections.
It is predictable that some small marks will be sustained to the walls as a result of everyday living in a tenancy as long as this one, especially if paintings and photographs are hung for approximately 9 years.
The hanging of paintings and photographs on the walls by the tenant is reasonable use. The marks to the walls are the result of the ordinary operation of natural forces.
The landlord’s claim for compensation to repair the walls is dismissed. Wooden shelf
The landlord claims the tenant is responsible for breaking the leg of a wooden shelving unit in the attic of the property. 2 Nixon v Geal-Olter (216/94 North Shore District Court December 1995).
The tenant accepts that the shelving unit was broken towards the end of the tenancy and suspects the people who helped him move his property might have accidentally broken it.
The tenant is responsible for the actions of the movers, as they were at the property with the tenant’s permission.
On the balance of probabilities, I find that the wooden shelving unit was broken during the tenancy by movers who were assisting the tenant. I consider the damage to be careless rather than intentional.
The landlord gave evidence that the shelving unit was “probably a cheap one” purchased from Mitre 10 or Bunnings. It was new at the beginning of the tenancy and 9 years old at the end.
The landlord seeks compensation of $200.00 to replace the shelving unit or contribute towards its disposal. The landlord did not submit any evidence to prove this was the replacement cost of the shelving unit.
The landlord submitted a quote to hire a bin big enough to dispose of the shelving unit. The quote is for $380.00.
In all the circumstances of this case, consider $100.00 to be a reasonable amount of compensation the tenant should pay the landlord to replace the wooden shelving unit or contribute towards its disposal.
In determining the level of compensation, I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
The amount ordered is proved. TENANT’S CLAIMS

FAILURE TO MAINTAIN

The law

Section 45(1)(b) RTA states: (1) The landlord shall – ... (a) Provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and ...
It is well settled that a landlord’s obligations under section 45(1)(b) RTA are to investigate and repair a defect brought to their attention within a timeframe that is reasonable in the circumstances. What is reasonable depends upon the gravity of the problem and objective attempts made by the landlord to investigate and remedy the problem. 3
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 or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach. 4 However, notice from the tenant is not required if the landlord knew of the need to repair or the need for repair was apparent from observation. 5
There is a failure to repair if the repair is ineffective, non-compliant or unsafe. 6
The tenant claims the landlord failed to remedy the following issues within a reasonable timeframe: a. Leak in downstairs bathroom b. Leak in kitchen c. Mould in downstairs bedroom
I deal with the alleged leaks first, before considering the claim in relation to mould. Leak in downstairs bathroom and kitchen
The tenant had flatmates to help them pay the rent.
The tenant claims there was a leak in the downstairs bathroom and kitchen. In support of this, the tenant submitted emails from three flatmates who lived at the property and occupied the bedroom downstairs.
The first email is from “Rohit” who lived downstairs from 1 September 2023 – 2 October 2023. It states: He [tenant] 3 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 4 Brough v Housing NZ Ltd NZTT 1848/1, 27 May 2002 at [13]. 5 Barfoot & Thompson Ltd v Case DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 6 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. ... We have not had a good experience living in the house with disgusting carpet condition and the room full of black mould and several water leaks during our stay. Despite raising these issues with you number of times affecting our health and safety, no action was taken to remedy them and prompted us to move out...
The second email is from “Clem and Hillel” who lived downstairs from 26 October 2023 – 8 February 2024. They state: Hello [tenant] ... About the tenancy matter: yes we hereby confirm that we experienced episodes of floor flooding both in the kitchen and close to the toilets in our bathroom during our stay between November 2023 and early February 2024. We remember a more extensive flooding (both in terms of frequency and volume of water) in the kitchen than in the bathroom...
The third email is from “Frank” who lived downstairs from 21 February 2024 – 10 August 2024. It states: Hi [tenant] ... The following are the main problems we found.
Water leakage in my bathroom and in the downstairs bedroom. The water leaks from somewhere and seeps up from the rubber tiles. There have been 3 times when significant leaks occurred, and I had to mop my bathroom for half and hour and many small leaks. I’ve met a plumber once, but the problem remains...
Water leakage in the kitchen sometimes. It’s not a big leakage like in my bathroom, but it annoys you to clean it whenever it happens. ...
The tenant did not call any of their previous flatmates to give oral evidence at the hearing.
The tenant submitted copies of text messages they had transcribed between the parties about the leaks in the downstairs bathroom and kitchen. The tenant first notified the landlord about the leak in the bathroom on 24 June 2023 in a text message stating: On another issue – downstairs bathroom floor was flooded just now. Ronnie is mopping it up No sign of where the water had come from. Do you need a plumber to come too? [tenant]
On 8 July 2023, the landlord sent the tenant a text message stating: Thanks [tenant]!...In terms of your flatmates – make it clear that the leak will get looked at at a later stage. It’s a pre-existing condition, we do what we can. Up to them how they want to take from this point. We only deal with you [tenant], not them!...
On 15 July 2023, the tenant sent the landlord another text message about water on the floor in the bathroom downstairs again.
On 17 January 2024, the tenant sent the landlord a text message about water on the kitchen floor stating: Hi [landlord], we have a problem with water on the kitchen floor. It doesn’t seem to be coming from any of the appliances or the sink area, or the wastemaster. It seems to be coming up through the tiles...this seems to be happening every 2 or 3 days.
The tenant claims that a plumber was only sent to the address to investigate the leak in the downstairs bathroom and kitchen in May 2024.
The landlord accepts that they did not send a plumber to investigate the complaints of a leak until 26 May 2024.
The landlord claims there was no leak in the downstairs bathroom or kitchen. The landlord submitted an email from the plumber who concludes: Hi [landlord] ... Kitchen sink: When I went to this job, I cleared out the cupboard below the sink and with a trouble light, I had a good look to see why it was so wet. I ran water down the sink but could not find any fault with the waste pipes. I also inspected the water supply pipes and could not find any fault with them either. I did notice water had collected on the underside of the stainless steel sink insert. The seal around the insert, appeared to be sound and watertight. At this stage I suspected the bay window above the sink of not being watertight. Bathroom Vanity I did the same with the Vanity, ran water and checked waste pipes and water pipes. I could not see any problems with the plumbing. The cupboard doors are all swollen from being damp and the only way that I can see that happening is when the Vanity has overflowed.
The landlord did not call the plumber as a witness to give oral evidence at the hearing.
The landlord referred to a photograph of the vanity submitted by the tenant and pointed out that it was swollen at the top. The landlord claims this supports the plumbers’ conclusion that the vanity sink must have overflowed. The landlord claims this could only have happened if the tenant’s flatmate had caused the sink to overflow.
The landlord submits that the complaints about a leak in the downstairs bathroom occurred around the time of a rent increase.
The first notice of a rent increase was sent on 4 May 2023 with an effective start date of 10 July 2023. The rent increased from $710.00 to $780.00 per week. The landlord notes that the first complaint about a “leak” in the downstairs bathroom occurred on 24 June 2023, which is shortly after the tenant received notice of the rent increase.
The tenant claims they had no problem with the rent increase from $710.00 per week to $780.00 per week. Analysis
The evidence is finely balanced however, on the balance of probabilities, I find that there was a leak in the downstairs bathroom and kitchen that required investigation by the landlord.
The tenant submitted emails from three tenants who lived downstairs confirming that they experienced leaks in the downstairs bathroom. Two of these flatmates also confirmed there was a leak in the kitchen.
The fact that three separate groups of people claim there was a leak in the downstairs bathroom and two of them confirm there was a leak in the kitchen enhances the credibility of these claims by the tenant.
From their email, the plumber appears to have only investigated the pipes in the vanity in the downstairs bathroom. There is no mention of investigating other sources of a potential leak such as the toilet or general plumbing pipe system. The email from “Frank” states that water appeared to seep up from the rubber tiles. The email from “Clem and Hillel” refers to the water as being close to the toilet. Whilst the landlord has ruled out the possibility that the leak came from the vanity, I do not consider that they have ruled out other potential sources of the leak.
The plumber also only appears to have investigated the pipes in the sink as the potential source of the leak in the kitchen. The email does not mention investigating other appliances such as the dishwasher or the general plumping pipe system in the kitchen. The tenant’s text to the landlord on 17 January 2024 states that the leak appears to be coming up through the tiles. Whilst the landlord has ruled out the possibility that the leak came from the kitchen sink, I do not consider that they have ruled out other potential sources of the leak.
The tenant submitted a transcribed copy of a text message sent by the landlord regarding the leak in the downstairs bathroom, which states: Thanks [tenant]!...In terms of your flatmates – make it clear that the leak will get looked at at later stage. It’s a pre-existing condition, we do what we can. Up to the how they want to take from this point. We only deal with you [tenant], not them!...
From this text message, it appears that the landlord had encountered an issue with a leak in the downstairs bathroom before. This further enhances the credibility of the tenant’s claim.
Other text messages from between the parties make it clear that the landlord considered the idea of investigating and repairing the leak in the downstairs bathroom to be a big job. For example, the tenant submitted a transcribed copy of a text message sent by the landlord on 5 November 2023 stating: To replace the vanity will be a big job! As the rest of bathroom will need a complete done up! A rent review will be on the card due to the renovation! The bathroom will be out for at least a couple of months! I will check that timeframe out!
From this text message, it appears that the landlord was hesitant to properly investigate the issue, because they did not want to have to undertake significant work in respect of the bathroom.
Whilst the complaint about the leak in the bathroom came shortly after the tenant received notice of a rent increase, I do not consider that the complaint was motivated by this.
The complaint about a leak in the kitchen occurred on 17 January 2024 and was not closely connected with any rent increase.
On the balance of probabilities, I find that there was a leak in the downstairs bathroom and kitchen.
The leak in the downstairs bathroom was first reported to the landlord on 24 June 2023. A plumber was sent to the address on 26 May 2024, some 11 months later. A delay of this length is unreasonable.
The leak in the kitchen was first reported to the landlord on 17 January 2024. A plumber was sent to the address on 26 May 2024, some 4 months later. A delay of this length is also unreasonable.
I consider compensation of $960.00 is reasonable in respect of the landlord’s failure to investigate and repair the leak in the downstairs bathroom within a reasonable timeframe. This equates to approximately $20.00 per week from the time the issue was first reported to the landlord to the time a plumber was sent to the address.
I consider compensation of $360.00 is reasonable in respect of the landlord’s failure to investigate and repair the leak in the kitchen within a reasonable timeframe. This also equates to approximately $20.00 per week from the time the issue was first reported to the landlord to the time a plumber visited the address. Mould
The tenant claims there was mould on the ceiling of the downstairs bedroom that was reported to the landlord who did nothing to remedy the problem.
The tenant gave evidence that the issue was raised verbally with the landlord by a flatmate some time in 2022 – 2023. The tenant claims the landlord offered to pay for wipes so that the flatmate could remove the mould. The tenant did not submit any written communication to the landlord about the mould.
The tenant submitted a photograph of the mould on the bedroom ceiling.
The landlord gave evidence that a former flatmate mentioned the presence of mould to the landlord once when the landlord visited the property to complete some pruning.
The landlord claims they visited the flatmate’s bedroom to look at the mould but could not see any at the time. The landlord claims the flatmate was only in the property for approximately one month before leaving. The landlord gave evidence that the issue was never raised with them again and they did not believe it to be an ongoing problem.
I find that the tenant has not proven their claim in relation to mould in the downstairs bedroom. There is insufficient evidence to prove when the issue was first raised with the landlord. The tenant did not call the flatmate who reported the issue to the landlord as a witness.
I find that the presence of mould in the downstairs bedroom was only raised with the landlord briefly and informally by a former flatmate. This flatmate was only in the property for approximately one month. The landlord investigated the issue immediately when it was reported but could not see any mould. The issue was never raised with the landlord again and in the transcribed copies of text messages between the parties, it is never mentioned.
In these circumstances, I do not think it is fair for the tenant to now claim that the landlord failed to investigate and remedy the mould in the downstairs bedroom within a reasonable timeframe. The issue was not brought to the landlord’s attention sufficiently.
The tenant’s claim in relation to the mould in the downstairs bedroom is dismissed.

EXEMPLARY DAMAGES

The law

I have found that the landlord breached their obligations under section 45(1)(b) RTA in respect of a leak in the kitchen and downstairs bathroom.
Failure by a landlord to comply with section 45(1)(b) RTA is an unlawful act for which exemplary damages up to $7,200.00 may be awarded. 7
Section 109 of the RTA confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award. 7 Residential Tenancies Act 1986, section 45(1A) and Schedule 1A.
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.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first being served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal that: 8 Before an award for 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.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages. Analysis
I consider that the landlord acted intentionally in not hiring a plumber to investigate the leak in the kitchen and downstairs bathroom within a reasonable timeframe. The tenant reported the leaks to the landlord in writing and followed up with the landlord a number of times. It is quite clear that the landlord was aware of the issue and chose to do nothing about it. 8 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92
The tenant gave evidence that the landlord’s delay in attending to the leaks in the downstairs bathroom and kitchen caused friction between them and their flatmates. The tenant gave evidence that the inaction of the landlord caused flatmates to leave, which meant the tenant had to pay more towards the rent whilst looking for a replacement flatmate.
There is a public interest in ensuring that landlords investigate and remedy defects brought to their attention within a reasonable timeframe.
There was a considerable delay by the landlord in this case to investigate the leak in the downstairs bathroom and kitchen.
In all of the circumstances, I consider it is just to make an award of exemplary damages in this case.
In setting the amount the landlord must pay to the tenant by way of exemplary damages, I bear in mind the fact that the majority of the tenant’s submissions regarding their claim for exemplary damages focussed on the effect the rent increase had on them. As a result of my findings under the landlord’s claim for rent arrears, I do not need to consider whether the rent increase from $780.00 to $900.00 substantially exceeded the market rent for this type of property at the time. Even if I found that it did, this is not an unlawful act for which exemplary damages may be sought under the RTA. If a tenant thinks that a rent increase substantially exceeds the market rent, then the appropriate course of action is to file an application under section 25 RTA with the Tribunal.
In all of the circumstances, I order the landlord to pay the tenant $500.00 in exemplary damages for their breach of section 45(1)(b) RTA. FILING FEE & NAME SUPPRESSION
Both parties have been substantially successful with their claims. Therefore, I do not order either party to reimburse the filing fee and I grant both parties’ request for name suppression.

Tenancy Tribunal case 5005693 — Rent arrears at Unit/Flat 3, 31 Abbotts Way, Remuera, Auckland 1050

At a glance

Tenancy Tribunal case 5005693 — Rent arrears at Unit/Flat 3, 31 Abbotts Way, Remuera, Auckland 1050

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RENT ARREARS

When did the tenancy end?

WATER RATES

GARDENING

DAMAGE

FAILURE TO MAINTAIN

EXEMPLARY DAMAGES

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RENT ARREARS

When did the tenancy end?

WATER RATES

GARDENING

DAMAGE

FAILURE TO MAINTAIN

EXEMPLARY DAMAGES

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions