What was Tenancy Tribunal case 5099971 about?

The tribunal order states: must pay immediately, calculated as

How much money was awarded in case 5099971?

Property Damage: $300.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5099971?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 5099971?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11405546-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5099971 about?

The tribunal order states: must pay immediately, calculated as

How much money was awarded in case 5099971?

Property Damage: $300.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5099971?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 5099971?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11405546-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5099971 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5099971 — net $827.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Tenant's goods damaged by Tradespersons	$300.00	Tenant's goods damaged by Tradespersons
Exemplary damages: Breach of Quiet Enjoyment	$500.00	Breach of Quiet Enjoyment
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$827.00
Total payable by Landlord to Tenant	$827.00

Claims and awards in Tenancy Tribunal application 5099971 — net $827.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Tenant's goods damaged by Tradespersons	$300.00	Tenant's goods damaged by Tradespersons
Exemplary damages: Breach of Quiet Enjoyment	$500.00	Breach of Quiet Enjoyment
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$827.00
Total payable by Landlord to Tenant	$827.00

Order

must pay immediately, calculated as shown in table below:
The landlord’s claims are not proven and therefore dismissed.
Both the landlord and the tenant are granted name suppression.

Reasons

Both parties attended the hearing held on the 4 February 2025.
The tenancy began on the 14 September 2024. The tenant lives in the property with her 4 children and her baby granddaughter.
The property is managed by [The property management company]. [The property manager/s] is the property manager.
At approximately 10pm on the 28 November 2024, a water pipe in the ceiling burst causing water to leak into the ceiling cavity. The tenant was away from the property at the time as she was attending a funeral of a family member in the Hawkes Bay but her 17-year-old son was at the home.
The teenage son tried to contact his mother when he first noticed water damage, but the tenant had her phone off. The teenage son did not know the landlord’s number or know what else to do.
At 5am, the following morning the 29 November, the tenant saw she had missed calls and texts from her son. When learning of the problem and damage she immediately called her landlord.
The property manager says she called plumbers to the property. At 8am the plumber called the tenant’s son and talked him through how to turn off the water at the mains, which he did.
The tenant’s son then left the property because the tenant was concerned that the ceiling could fall in and that there was no water in the property.
Sometime later that morning the plumber came to the property to repair the leak. The manhole in the bedroom did not allow easy access to the area of the leak, so the landlord allowed the plumber to cut a hole in the lounge ceiling to gain access to the leaks. The plumber fixed the leak and removed some of the sodden insulation.
Later that afternoon the property manager and the agent attended the property with the builder. The landlord made a claim with their insurers, and their insurers advised that no further work to remedy the damage should occur until their assessor had a chance to look at the damage and assess the claim.
The assessor attended the property on Monday 2 December, with the builder and the insurers then authorised the remedial work to the ceiling. The landlord’s insurance claim was accepted, and work was able to begin to ensure that the leak was repaired, and the ceiling was remediated.
On the 3 December the tenant returned from the Hawkes Bay. She could not stay in the house because there was no water and because of the damage. She went to the property to survey the damage and took videos and photographs of the damage.
The landlord agreed that the tenant would not pay rent for 3 weeks from the 29 November to the 13 December and that the tenant would move out of the property from 4 to 11 December. The landlord agreed to pay as a ‘good will gesture’ for the tenant to stay at a nearby motel until the 11 December when the work was completed. The claims.
The tenant filed her application on the 6 December 2024, she claims: a) That the landlord’s repairmen breached her quiet enjoyment of the property by using her granddaughter’s pool (which was brand new to put insulation and building material into), using her chattels to climb up to ceiling, moved and damaged a carving which was a taonga. That the tradesmen used the toilet in the tenant’s ensuite bathroom which necessitated the male workman going into her bedroom and using the toilet, when there was the main toilet in the house which was closer. b) At the hearing the tenant also claimed the value of her vacuum cleaner which she says that she had purchased some months earlier and was used by the landlord’s tradespeople to clean up the property without her permission. The tenant says that use of the vacuum cleaner damaged the vacuum cleaner rendering it unusable. This damage was only noticed on the 8 December 2024.
The tenant claims compensation for the value of the goods and exemplary damages for breach of her quiet enjoyment.
The landlord filed their application on the 27 January 2025, the landlord claims: a. That the tenant breached section 40(1)(d) RTA by failing to notify the landlord of the need for repairs as soon as the water started leaking. b. That the tenant breached section 49 RTA by failing to mitigate the damage caused by the leak. c. The landlord seeks termination for the breaches. Did the tenant fail breach s40 (1)(d) by failing to notify the landlord of the leak until 5am the morning following the breach?
Section 40(1)(d) RTA requires the tenant to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs.
The landlord says that the tenant should have notified the landlord of the leak much sooner (as soon as the leak occurred). The landlord submitted that it did not believe that the tenant was away as she claimed when the damage happened at that she should have notified the landlord at 10 pm or soon after not 5am the following morning.
Having heard the evidence I am satisfied that the tenant complied with her obligations in s 40(1)(d) by notifying the landlord of the damage as soon as she was told about it. I say this for reasons that include: a. I am satisfied that the tenant was away from the property (In the Hawkes Bay for a funeral) at the time that the leak occurred. b. The requirement under s40(1)(d) is for the tenant to notify the landlord upon discovery of the damage, it is implicit in that requirement that the obligation only arises when the tenant finds out about the damage. There was no unreasonable delay in the tenant being alerted. Her children told her immediately and the tenant had a plausible and understandable reason for not learning about the damage until 5am the following morning. c. The tenant immediately notified the landlord as soon as she found out. She did this very early in the morning, she did not wait until business hours. This demonstrates to me that the tenant took the leak very seriously and did not delay at all in notifying the landlord. d. The landlord’s submission that had the tenant or her son notified her earlier it may have prevented the extent of the damage, was speculative and not supported by evidence. The leak was a sudden event, the water would have quickly infiltrated the ceiling cavity and the insulation. The first video the son took of the damage showed extensive cracking in the ceiling and water penetrating. It is true that in the second video taken some time later (it is not clear if this was minutes or hours later) that evening that there is more water coming through those areas, but the extent or area of the damage is the same. The first video is proof that the whole ceiling was infiltrated and damaged almost immediately. e. I do not accept the landlord’s submission that if she was told earlier (i.e after 10pm) that she would have been able to get a plumber to the property any earlier than she did. She did not provide any evidence that supported this proposition. I note that when the landlord was told at 5am that she did not go to the property, the owner did not go to the property and the plumber only told the tenant’s son to turn off the water at 8am. [The property manager/s] indicated in her evidence and text messages with the tenant that she had to wait till after 7 am to get plumbers, but is claiming that she had access to 24 hour plumbers and they would have attended if she had been told after 10pm. f. There was no evidence that damage that occurred between 10pm and 5am was more than what could be expected from the sudden event itself. In other words, even if the tenant’s son had notified the landlord at 10pm of the problem and the damage, the nature and the extent of the damage would not have changed. The sudden bursting of the pipe was the cause of the damage. It is unlikely that any action anyone could have taken would have prevented the nature and extent of the damage that occurred from that event.

Did the tenant breach s49 of the RTA?

Section 49 RTA provides that a party has a duty to mitigate their loss when the other party is in breach.
Neither party was in breach of their obligations to each other, the leak was an act was something that neither of them anticipated. It was an insurable event and the landlord has successfully claimed insurance for the event.
The landlord claims that the tenant should have turned off the water and mitigated the loss.
There is no evidence that shows that had the water been turned off that the nature of extent of the damage would have been mitigated. I note that the agent did not tell the tenant to turn the water off when the tenant rang her at 5am, and it took another 2-3 hours for a plumber to contact the tenant’s son to tell the tenant’s son how to turn the water off.
The landlord was fully covered by insurance for the leak and the repair costs. The landlord has not suffered any loss as a result of alleged failure to mitigate. Why the landlord’s claims are dismissed.
The landlord’s claims for breaches of s40(1)(d) and 49 are not proven and therefore no termination can be given pursuant to s56. Did the landlord’s tradespersons breach the tenant’s quiet enjoyment?
The tenant claims that the landlord’s tradespersons damaged her belongings and disrespected her and her property during the remediation work.
It is important to note here that the tenant does not claim that [The property manager/s] and the landlord breached her quiet enjoyment, but rather that the tradesmen that they employed to do the repair job for her did.
The tenant claims that the landlord’s tradespeople: a) Used her granddaughter’s new shell paddling pools to put the insulation and building materials removed from the ceiling and threw the pools in the rubbish. The tenant confirmed at the hearing that the tradespeople have since replaced the pools. b) Did not put sufficient coverings over her couch, which meant the insulation was over it. The tenant has a chronic skin condition that would be aggravated by the insulation and building fibres. c) Moved a precious māori carving from it’s base separating it into two parts and damaging the carving base which had paint splatter and scratches on it. The tenant says that the carving was a taonga and is tapu. The way the tradespeople have treated the carving is disrespectful and distressing. d) Damaged her kitchen stools (x3) which she found in different locations when she went to the house on the 3, 5 and 8 December. On some occasion the stools were inside, at other times outside the property. The stools were scratched and had paint damage. e) That the tradesmen have used the toilet in her ensuite because when she went to the property on the 3 December the toilet seat was in its normal position as being down, whereas when she went on the 5 December the toilet seat was up indicating a male had used it. The tenant says that the bedroom and ensuite are well away from the damage in the living areas and there was no need to use this toilet when another toilet in the main part of the house was closer. The tenant says this has violated her privacy. f) Used her vacuum cleaner without her permission to clean the carpet and furnishings damaging the vacuum cleaner. The tenant provided photographs of the vacuum cleaner which clearly showed building debris (dust from the gib and sanding) on the vacuum cleaner. The tenant says that as a result of her vacuum being used it was damaged and also, she could not use it because it may have put building material in other parts of her house and aggravating her skin condition. g) That the tradespeople left rubbish in the property, such as boxes on her dining table and did not clean up properly.
The landlord’s tradespeople deny using or damaging the tenant’s chattels or using her toilet in the ensuite.
The landlord tradespeople have however replaced the tenant’s paddling pools.
A landlord is responsible for the actions of the tradespeople in the tenant’s home. If a tradesperson breaches the tenant’s quiet enjoyment, then the landlord is liable to the tenant for this breach.
A landlord (in this case the landlord’s tradesperson) must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (see s 38(2) Residential Tenancies Act 1986).
I am satisfied after considering all the evidence, and in particular the photographs provided by the tenant which were time and date stamped, that the tenant has proven that the tradespeople breached the tenant’s quiet enjoyment of the property as follows: a. By using and damaging the tenant’s goods -paddling pools, vacuum cleaner and stools. I find it more than likely that the tradespersons used the vacuum cleaner because of the building residue clearly visible on the vacuum, especially the pad of the vacuum. I find it likely that the tradespeople used the stools because they were taken inside and out, and they have paint and other material on them. b. By going into the tenant’s bedroom and using the tenant’s ensuite bathroom, when it was unnecessary for them to do so. They had access to a toilet that was closer to the lounge where the damage was. There was no need for them to enter the tenant’s bedroom. c. By separating the tenant’s taonga carving and damaging the carving by allowing it to be scratched and have paint on it. d. By not taking sufficient precautions (such as laying cloths or protective plastic over the tenant’s lounge suite) when removing the insulation which resulted in the insulation fibres ending up on the tenant’s belongings.
The tenant has claimed both exemplary damages and compensation for this claim. I award the tenant $300 as compensation for the breach, this is for the costs of the goods damaged by the landlord’s tradespeople. In coming to this amount, I have accepted the tenant’s evidence that the goods were the age that they were, but I also take into account that I have not been provided with receipts of the goods or proof of purchase. I also take into account the value of the goods at the date of the breach, that is how much would these good be worth on the 3- 8 December 2024.
A tenant is only entitled to exemplary damages for a breach of quiet enjoyment if the breach is in circumstances that amount to harassment.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).
Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
Taking into account the above case law, I am satisfied that landlord has committed an unlawful act because I consider that the breaches to be of such seriousness that they can be determined to be harassment I say this for the following reasons: a. I am satisfied that the manner in which the tradespersons treated the tenant’s māori carving to be very serious. Māori carvings are considered to be taonga 1 . The tenant described this carving, gifted 1 The legend of Ruatepupuke establishes carving as a taonga tuku iho, a divine gift from the gods handed down from ancestors, and therefore an art form that requires ritual respect. Taken from Te Ara.govt.nz the Encyclopaedia of New Zealand: Whakairo – Māori carving, Brett Graham to her by the father of her children, which he did as part of his own healing journey as being tapu. She said that in māori culture the carvings are an extension and representation of the person who created them. To illustrate this, she said that her granddaughter referred to and talked to the carving as if it were her grandfather. b. I am satisfied that the tradespeople moved the carving. This may have been necessary as part of the restoration and remedial work, but when doing so they should have taken care to treat the carving with respect. I am satisfied that they did not do that. The base of the carving was found on a stool, whereas the rest of the carving was placed elsewhere, the base of the carving (which was carved as well) was damaged during the remedial work it was scratched and had paint splatter or transfer on it. The tenant was distressed and upset by the way that the landlord’s tradespeople treated the taonga. c. I am also satisfied that the tenant raised concerns about the use of her goods and tradespersons conduct on the 3 December and that the tradespeople continued to use the tenant’s belongings after that time, without her permission. d. I consider the use of the tenant’s bathroom and access to the tenant’s bedroom to be a serious breach. When tenants have to leave their home because of an unforeseen event such as damage caused by fire, or flood, they put trust and faith in the landlord’s tradespeople that they will treat both their belongings and home with respect. This includes only accessing areas that are necessary. I am satisfied that the tenant’s privacy was breached, and this caused the tenant considered distress and mistrust.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see s 109(3) RTA).
I consider that the landlord’s tradespersons acted intentionally in committing these acts and therefore I award exemplary damages of $500.00. This amount takes into account the effect on the tenant, the fact that it was the tradesperson not the landlord themselves that the committed the breach, and the public interest. It is in the public interest to make an award to serve as a deterrent and warning to all landlords that they should be careful about the tradespeople that that employ to conduct repairs in a tenant’s home, and that when the tradespeople breach the tenant’s quiet enjoyment then the landlord will be liable.
I comment that in my view the conduct of the tradesperson in this instance fell well short of that a tradesperson exercising reasonable skill and care when carrying out the repairs. Tradespeople should be expected to cover items which might become damaged during the repair, use their own resources when repairing and cleaning sites and should take care when moving items that they do not become damaged.
I also have taken into consideration the other financial support that the landlord gave the tenant during the period the house was inhabitable, the landlord gave a full rebate (which was appropriate) and as a good will gesture met the tenant’s accommodation costs. Name suppression for both parties.
Both parties have requested name suppression and I consider it appropriate to grant name suppression to both parties because the tenant has been successful and the owner and property manager were not the persons who committed the breach. I consider it is in the public interest to publish my decision but not to identify the parties involved. Both parties agreed that the tenant can terminate with 21 days notice.
At the hearing the parties agreed that due to what occurred and the subsequent tribunal proceedings that they have lost faith and trust in each other. The landlord has agreed the tenant can give notice of 21 days in order to end the tenancy when she finds an alternative home.

Tenancy Tribunal case 5099971 — Exemplary damages

At a glance

Tenancy Tribunal case 5099971 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenant breach s49 of the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenant breach s49 of the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions