What was Tenancy Tribunal case 5051428 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 5051428?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5051428?

The primary dispute was Smoke alarms. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5051428?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12156073-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5051428 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 5051428?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5051428?

The primary dispute was Smoke alarms. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5051428?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12156073-Tribunal_Order_Redacted.pdf.

18 Lysander Crescent, Beach Haven, Auckland 0626 Tenancy Tribunal Case 5051428 — Smoke alarms

Tenantcheck Insights

Reasons

Both parties attended the hearing. An employee of the landlord appeared via video. The tenant attended by phone. Tenant’s claims

At the hearing, the tenant confirmed a work order was no longer required, as work in relation to the gaps in windows and doors was carried out on or about 7 November 2024.

The tenant’s remaining claims, seeking a total award of $7,000, are: a. Exemplary damages for the landlord’s failure to meet the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) in relation to the HHS draught stopping standards; and b. Compensation for the landlord’s failure to comply with all requirements in respect of smoke alarms.

The landlord denies both claims. Burden and standard of proof

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards.

That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.

This obligation carried by the applicant 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 Kaipo 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 or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

In brief, the applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities. Exemplary damages: failure to comply with HHS re draught stopping

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 damages 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 that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA.

Section 109 of the RTA relates to exemplary damages and 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.

The maximum levels of exemplary damages are set out in Schedule 1A of the RTA. Under section 45(1)(A) and Schedule 1A of the RTA, failure to meet obligations in respect of HHS has a maximum penalty of $7,200.

[The tenant/s] alleges there were gaps around windows and doors in the bedrooms, kitchen, bathroom and front door of the property. The tenant provided photos of the bathroom and kitchen windows which he says were taken in April 2024. He says gaps around the windows visible in those two rooms were approximately 1cm, although he states he did not measure the gaps.

The tenant says, in early September 2024, he complained to his Housing Manager about the draughts coming through the gaps when she attended an inspection. The tenant says he followed up by email to his Housing Manager on 24 September 2024. The tenant says it was sent to the Housing Manager’s personal email address, which the Housing Manager had provided to the tenant.

When no action was taken, the tenant issued a 14-day notice on 1 October 2024. That notice was also emailed to the Housing Manager’s personal email address. The tenant says he also delivered a hardcopy to a Kāinga Ora office on 1 October 2024.

On 15 October 2024, the tenant called the Kāinga Ora call centre and raised the issue again. On 29 October 2024, the tenant became aware the 14-day notice had not been received by Kāinga Ora, and sent the 14-day notice to the Housing Manager’s Kāinga Ora email address. By that time, a work order had been raised by Kāinga Ora, as a result of the call to the Call Centre on 15 October 2024.

On or about 18 October 2024, a contractor attended the premises to inspect the windows and doors. 1 On or about 7 November 2024, the contractor returned 1 The landlord has provided photographs recorded as taken by a mobile tradesperson from Hungry House Ltd dated 18/10/24 and described as “before.” The work order records, as at that date, and carried out repairs to gaps in windows and doors. 2 The tenant supplied a photo which he said was taken by the contractor of the front door, which showed daylight coming in around the door.

The landlord accepts that as at 15 October 2024, there were gaps around some windows and the front door of the premises. However, the landlord says the premises had been assessed as compliant with all HHS as at 18 September 2023, 3 and that the landlord was not aware of any failures to meet those standards until the tenant’s complaint was received on 15 October 2024. The landlord noted the inspection conducted 5 September 2024 did not include any note that the tenant had complained of draught-stopping. The landlord says the complaint sent to the Housing Manager’s personal email address on 24 September 2024 was not received by the Housing Manager, nor the landlord.

The landlord says it was only on 15 October 2024 that the landlord became aware of the issues complained of. The landlord says they acted in a reasonable timeframe to have the gaps around the front door remedied by 7 November 2024.

Given it is not in dispute, I find the landlord committed an unlawful act in that the premises did not meet the HHS regarding draught stopping as at 1 October 2024.

The RTA states exemplary damages can be awarded only if the unlawful act was committed intentionally. In this case, I find the unlawful act was not committed intentionally. I am satisfied that at the start of the tenancy, the landlord believed the premises was compliant. 4 I am also satisfied that it more likely than not that the tenant’s complaint was not received by the landlord until 15 October 2024, and that, upon the gaps being brought to the landlord’s attention, action was taken to remedy the issues by 7 November 2024.

Given my finding that the unlawful act was not committed intentionally, there is no basis to award exemplary damages, 5 and I dismiss the tenant’s claim. Compensation or exemplary damages: failure to comply with all requirements in respect of smoke alarms

[The tenant/s] claims that the landlord breached their obligations under section 45 of the RTA in that the landlord failed to comply with all requirements in “Timber-framed windows are not opening in the dining room and bedrooms. Gaps in windows and external doors (not weather-tight). Bathroom and toilet windows don’t shut.” 2 Refer “after” photographs taken by a mobile tradesperson from Hungry House Ltd dated 07/11/24. 3 Pursuant to the Healthy Homes Certificate dated 18/09/23 filed during the hearing. 4 Refer the Healthy Homes Certificate issued 18 September 2023. 5 See s 109(3) of the RTA. respect of smoke alarms as set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.

Although the tenant framed their claim as one seeking compensation, no evidence of any costs incurred was produced by the tenant. I have instead considered the claim as one seeking exemplary damages.

Under section 45(1)(A) and Schedule 1A of the RTA, failure to meet obligations in respect of smoke alarms also has a maximum penalty of $7,200.

The tenant says there were no smoke alarms, or an incomplete number of smoke alarms, installed at the start of the tenancy. The tenant says some smoke alarms were only installed in July 2024. The tenant did not provide any evidence (such as photographs) to show the smoke alarms were not present at the start of the tenancy. The tenant provided photographs to show two new smoke alarms were installed in July 2024.

The landlord says smoke alarms were in-place at the start of the tenancy, and relies on a pre-inspection report completed 15 August 2023 which includes photos depicting smoke alarms installed on the ceilings in the entry, hallway, and each of the three bedrooms. The landlord says the property was not occupied by anyone else between 15 August 2023 and 22 September 2023, the latter being the date the tenant’s tenancy commenced.

The landlord says during a Health and Safety inspection conducted on 24 July 2024, the contractor found two smoke alarms missing: one in in Bedroom 1 and one in the hallway. 6 The landlord says the inspector installed two new smoke alarms on the same day. 7

The tenant has not established their claim on the balance of probabilities. There is no evidence in support of the claim smoke alarms were not in place at the start of the tenancy. I accept the landlord’s evidence that shows, to the contrary, smoke alarms were in place in the entry, hallway, and three bedrooms at the start of the tenancy.

The tenant’s claim in respect of failure to meet smoke alarm standards is dismissed. Should the landlord reimburse the tenant’s application fee?

As the tenant has not succeeded with their claim, the tenant is not entitled to reimbursement of the application fee. 6 Refer Health and Safety Inspection report dated 24 July 2024 provided during the hearing. 7 Ibid. Should the tenant’s identifying details be suppressed?

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name and/or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. The tenant applied for name suppression, but was not wholly or substantially successful. They are therefore not automatically entitled to suppression under s95A(1) of the RTA.

However, under s95A(4) of the RTA, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.

I am mindful that open justice is a fundamental principle in our legal system. In my view, the tenant’s name and identifying details ought to be suppressed for the following reasons: a. At the time of the application, the work in relation to draught-stopping had not been carried out, and therefore there were grounds to seek a work order (which was no longer pursued at the hearing) and/or exemplary damages. b. The tenant is a single-parent to young children, the youngest of which has had a serious medical diagnosis while in the premises. I accept publication may cause stress to the family. c. I am not aware of any particular public interest in this matter, beyond the generic public interest in the open justice reporting principle.

Given all these factors, an order is made suppressing the tenant’s name and identifying details.

Reasons