Published tribunal order
Tenancy Tribunal case 5127159 — Exemplary damages
Decided 9 Dec 2025 · Published 9 Dec 2025 · Application 5127159
- Exemplary damages
- Cleanliness
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the names of both parties and identifying details.
- [The landlord/s] must pay [The tenant/s] $800 immediately, as set out in the table below: BreachLandlordTenant Exemplary damages – failure to lodge the bond $500 Exemplary damages – lack of rangehood, heat pump and oven $700 Cleaning$200 Hole in the wall$200 Balance to be paid by landlord to tenant $800
Reasons
- Both parties attended the hearings. The first hearing was on 30 May 2025 and the second was on 6 October 2025.
- I heard evidence from all parties on all of the claims at the first hearing, but adjourned the hearing because I considered the Council property file to be relevant to the question of whether the premises were unlawful.
- I advised the parties by order of 30 May 2025 that when the hearing reconvened, I would hear further evidence from the parties from the parties on the question of whether the premises are unlawful.
- When the hearing reconvened on 6 October 2025, I then heard from both the landlord and the tenant, each of who was assisted by an interpreter. The landlord confirmed the second hearing that the costs he was seeking to recover were $400 for cleaning and $200 for repairing a hole in the wall. The premises and the tenancy agreement
- The tenancy started on 4 February 2024. It was for a fixed term of one year but by agreement it came to an end on 19 January 2025.
- The premises are situated in a block of four units. It is what appears to be residential home converted into four units some time ago. It has two units upstairs and two units downstairs.
- There were two bedrooms in the tenant’s unit, located upstairs. The tenant lived there with his wife and 6 year old daughter. The tenancy has a small kitchenette with a cooktop but with no oven.
- The tenant had a separate access to his premises from the outside. The claim
- The tenant’s claims 1 are: a. The bond was not lodged at the Bond Centre b. The landlord has breached Healthy Homes Standards (HHS) in that there was no heat pump/cooling unit in the house and there was no oven, rangehood or extractor fan in the kitchen; c. The landlord insisted on taking other tenants to view property before end of the term. d. There were eight empty bulb sockets throughout the unit, covered by black tape. e. The premises is unlawful. Burden of proof
- I begin by noting that the Tribunal applies the usual civil law standards and expectations as to the burden of proof. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. They must establish that what they are claiming is more probable than not.
- Independent witnesses, corroborating documents and reports and photographs can be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
- As noted in Kaipo v Clarke, in practical terms this means that: 2 ...[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. 1 Modified and agreed after discussion with tenant at the first hearing. 2 Kaipo v Clarke DC Waitakere TT 233/02, 12 April 2002, at [7]. Exemplary damages
- The tenant seeks exemplary damages. Exemplary damages are designed to punish and to deter.
- 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 RTA.
- As I explained to the parties during the hearing, 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.
- Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if an 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.
- I now turn to consider the tenants claims first, followed by the landlord’s claims. The tenant’s claims Bond was not sent to the Bond Centre
- The tenant paid three weeks rent by way of bond. The tenant says it was not lodged at the Bond Centre. The landlord has directly returned to the tenant two weeks rent and has deducted the third week bond from the final rent payment. Nothing is owing back to the tenant by way of bond but the tenant’s claim is that the bond was never lodged at the Bond Centre.
- The landlord does not dispute that the bond was not lodged at the Bond Centre but he claimed he does not use computers and finds it too complicated to do so. He said some tenants want him to keep the bond because it is quicker for the money to come back to them at the end of the term and that way the bond can be used also to cover final rent payments.
- The landlord was aware that bond needed to be lodged at the Bond Centre. He was himself once a tenant. He was therefore aware through being a tenant that bond has to be lodged at the Bond Centre
- He has owned these premises for nine years and has never lodged any bonds with the Bond Centre. The premises has mainly been rented out for that entire time.
- I consider the landlord to have been well aware of the obligation to lodge the bond with the Bond Centre. He accepted this after several questions from me during the first hearing, eventually conceding that he was aware of “something like that”.
- The landlord did not however deposit the bond with the Bond Centre. Analysis
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- The landlord is in breach of s 19 of the RTA, with respect to failing to lodge the bond with the Bond Centre.
- Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
- For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
- Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the s 19 requirements, is declared to be an unlawful act, and therefore could be the subject of an order of exemplary damages.
- The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for failing to lodge the bond is $1,500.00.
- In this case, I consider it more likely than not that the failure to lodge the bond was intentional. The landlord was well aware that he had not done so, despite being aware of the legal obligation.
- The landlord are not first time landlords, and it is well recognised in New Zealand that bonds need to be lodged with the Bond Centre. The effect of the landlord’s breach is that the tenant’s bond has not been kept securely in trust in the Bond Centre. There is a very strong interest for tenants, landlords and the public generally, that bonds be lodged with the Bond Centre to ensure that the bond system is robust. I consider it would be just to make an order in this case.
- In the absence of aggravating factors the Tribunal normally would award exemplary damages at one third of the maximum, and that is what I will order today. I order the landlord to pay exemplary damages of $500.00 for failing to lodge the bond. Breach of HHS in that there was no heat pump /cooling unit and no rangehood or extractor fan in the kitchen
- There was no heat pump in the house. According to the tenancy, this meant that by the end of December it was very hot. Both bedrooms faced west and it was extremely hot for the tenant and his daughter, aged 6.
- The tenant took a photo on 10 January 2025 of a temperature gauge to show the temperature was 30 degrees at 7pm.
- The tenant told the landlord it was very hot, even with the windows open, and asked for the term to be reduced because it was so uncomfortable.
- The landlord lent the tenant a cooling unit. This helped a little but not much, according to the tenant. Had there been a heat pump already installed, the tenant could have turned the heat pump on to a low-temperature to cool the premises down. The landlord claims that he had installed heat pumps in two of the other units but that the tenant had declined installation of a heat pump and had refused access for that purpose.
- The tenant wanted to leave the premises early. The landlord said the tenant could move out early but he would still need to pay rent.
- The kitchenette came only with a small cooktop. No rangehood or other were provided.
- The landlord agreed there is no rangehood in the unit but says he was prepared to install a rangehood and there is a rangehood installed in the kitchen now.
- The tenant said he never stopped the landlord to come in and fix or install anything, such as arrangement or heat pump. The only time he said the landlord could not come in was when the landlord wanted to bring in prospective tenants.
- The tenant said there was a time when the washing machine broke in October 2024 and the landlord accessed the unit to fix it. Analysis.
- The Residential Tenancies (Healthy Homes Standards) 2019 provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
- Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
- Compliance dates for HHS vary depending on the tenancy, but this tenancy needed to comply within 90 days of the tenancy start date.
- The landlord does not deny that there was no heat pump on the premises and says he has now installed one.
- The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. But for kitchens the landlord needs to have a mechanical extraction system, or other approved system.
- Regulation 7 of the Housing Improvement Regulations 1947 provides that every kitchen or kitchenette must have adequate means of preparing food and of cooking food, both by boiling and baking. Section 45(1)(c) of the RTA requires landlords to comply with any requirements as they relate to buildings. Breach of this provision is also an unlawful act for which exemplary damages can be awarded up to $7200.
- I accept the tenant’s evidence that the premises became extremely hot and that this was the reason that caused him to seek to vacate early. It is understandable that this would be an untenable situation for a young child to be living in. I also accept the tenant’s evidence that there was no oven and rangehood at the property, only a cooktop.
- Food cannot be baked on a cooktop.
- The landlord was therefore in breach of s 45(1)(c) and r 7 of the Housing Improvement Regulations 1947 by not having an oven.
- The landlord was in breach of the HHS mentioned above by failing to have a heat pump and range hood installed in the property.
- The landlord was aware of these breaches but I acknowledge that he has since taken steps to rectify them. He must nevertheless have been aware of the obligations on himself as a landlord in relation to HHS.
- I consider any decision making about these breaches must have been intentional.
- Taking into account section 109, I consider exemplary damages should be ordered. There was an impact for the tenant in terms of there being an absence of an extraction unit, and adequate cooling, but I accept that could be mitigated with the window nearby and the cooling unit. But there is a strong interest that homes be warm, dry and healthy, which is the overarching intention of the HHS.
- I consider that an overall order in favour of the tenant for all aspects to above is appropriate at $700, for exemplary damages. The landlord insisted on taking other tenants to view property before end of the term.
- After the tenant said he was leaving the premises, the landlord called the tenant to say he wanted to bring potential tenants through the property and the tenant initially refused but then felt pressured to accept these viewings, which were disruptive for the tenant.
- I note that the tenant seems nevertheless to have permitted the landlord to bring new tenants through the property.
- I dismiss this aspect of the claim as I consider that the tenant has most likely acquiesced in the landlord bringing new tenants through to view the property. Empty bulb sockets are covered by black tape
- The tenant alleges that there were eight bulb sockets on the sides of the walls and on the ceiling which had no light bulb in them only black tape over them.
- The tenant alleges that this was dangerous but offered no independent evidence corroborating that.
- The tenant did not complain about his issue at any time during the tenancy.
- The landlord said the tenant raised no issue about the sockets at the outset of the tenancy or at any other time. Analysis
- Under s 45 of the RTA, a landlord must 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. A landlord must also comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. 3
- The obligation of the landlord to provide premises in a reasonable state of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage (see Barfoot & Thompson v Casey. 4 ) Further, a tenant must notify the landlord as soon as possible after discovery of any damage to the premises and the need for repair. 5 The landlord's obligation is to then repair within a reasonable time after knowledge of the need for repair. 6
- I consider that this claim has not proven. The landlord has not proven that this represented any form of danger but more significantly, the tenant has not taken any steps to complain about this aspect to the landlord. It has instead been raised will in the context of this application. The premises was unlawful.
- The tenant had said in their application: “One single house leased out as 4 different units, I think the agreement should be flatmate agreement, rather than Tenancy Agreement. I told the landlord and agent by email, but Landlord insisted the Fixed Term Tenancy Agreement by a [Real estate] agent; Landlord does not live in this house.”
- I have no doubt that this was not a flatmate situation. No tenants were sharing facilities and the landlord did not reside at the premises. I explained this to the parties during the first hearing and in discussion with the tenant he refined this aspect of his claim to the allegation that the premises were unlawful.
- Having raised this allegation, the landlord said in reply at the first hearing i. There are 4 rubbish bins at the property; two for general waste and two for recyclables. 3 Section 45 of the RTA 4 DC Auckland CIV 2005 004 1762, at [28] 5 S 40(1)(d) of the RTA, Vu v Hutchings [2016 ] NZTT 4054247, at [13] 6 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009 085 1431, at [15] ii. He is unsure if the property is consented for four separate household units. He said he cannot guarantee that everything is consent to by Council because he has not checked. iii. When he bought the home 15 April 2015 it was already converted into 4 units. iv. This is the landlord’s only rental property.
- Following the first hearing I requested the Council file.
- This file was provided and it showed that in March 2015 there was an application lodged by the then owner for a “letter of acceptance”. 7 This related to adding two bathrooms upstairs and one downstairs in 2014. Various producer statements were provided in support of that request. The file shows that there was a council site visit and inspection and a certificate of acceptance was later granted.
- I invited the parties to make submissions on this aspect at the second hearing.
- The landlord submitted that he had no knowledge about any of this because this work was all done before he purchased the property. He claims that he has been renting the property out for the last 10 years in this state.
- The tenants submitted that the property is not as is many household units but he offered no evidence corroborating this aspect.
- I am not satisfied based on the quality of the evidence provided that the premises as unlawful. In any event, given the orders I have made above, I consider that the findings and sums I have awarded in favour of the tenant does adequate justice between the parties and adequately deals with the tenant’s concerns. 7 An "application for a letter of acceptance" refers to applying for a Certificate of Acceptance from [City] Council. Such a certificate is granted will then verify that building work which may have been done without consent or otherwise in a situation where a Code Compliance Certificate cannot be issued, nevertheless meets the Building Code.
- I now deal with the landlords claim.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
- The landlord claims that the tenant did not leave the premises reasonably clean and tidy. He and his wife cleaned the premises and he claims $400. They allegedly spent ten hours cleaning the premises.
- I am satisfied from the photographs provided that some cleaning was required and I will allow $200 for cleaning. I consider that to be a reasonable sum ordered in favour of the landlord in a situation where he has not actually incurred any cost but is simply elected to do the cleaning himself. A commercial cleaner may have been able to clean the property in significantly less time.
Is the tenant responsible for the damage to the premises?
- 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.
- A difficulty in the landlord’s claim was a lack of quality evidence about what the condition of the premises looked like at the outset of the tenancy. I had inadequate photographs of the premises at the outset of the tenancy and so making any comparisons is difficult.
- The tenant accepts he left a hole in the wall. He said he was happy to pay for any repair cost but he had not seen any invoice.
- I will fix the damages at $200 and order that be paid in favour of the landlord by the tenant.
- Both parties have had a measure of success I decline to make any order for refund of the filing fee. Because both parties have had a measure of success I award name suppression in favour of both parties.