Published tribunal order
Tenancy Tribunal case 5135549 — Rent arrears at 24 Westminster Street, St Albans, Christchurch 8014
Decided 6 Jun 2025 · Published 6 Jun 2025 · Application 5135549
- Rent arrears
- Cleanliness
- Exemplary damages
Order
- [The tenant/s] and [The tenant/s] must pay [The landlord/s] and [The landlord/s] $735.05 immediately, calculated as shown in table below. Rent arrears$3,450.00 Cleaning$445.05 Carpet Cleaning$340.00 Compensation: door handles/latches $150.00 Exemplary damages: bond $350.00 Total award$4,235.05$500.00 Net award$3,735.05 Bond$3,000.00 Total payable by Tenant to Landlord$735.05
- The Bond Centre is to pay the bond of $3,000.00 (BN-00003094) to [The landlord/s] and [The landlord/s] immediately.
- The landlords’ other claims are dismissed.
- The tenants’ other claims are dismissed.
Reasons
- Both parties attended the hearing. Ms Manawatu represented the tenants and Ms Williams represented the landlords.
- Mr Brennan and Ms Manawatu had a fixed term tenancy of the premises commencing on 15 April 2024 and ending on 1 December 2025. On 15 November 2024, Mr Brennan and Ms Manawatu advised Mr and Ms Williams that they will be vacating the premises and they did so on 7 December 2024. Rent was paid up to 8 December 2024.
- On 20 November 2024 Mr Brennan and Ms Manawatu filed an application (application number 5078232) for reduction of the fixed term of the tenancy, and for compensation and/or exemplary damages for: • Failure to lodge the bond within 23 working days of receiving it; • Failure to repair and maintain the premises at all or within a timely manner, in particular: o The ensuite and laundry doors o The toilet plumbing o Windows • Interference with their right to quite enjoyment and harassment;
- That application came before me on 3 December 2024 where I made an order dismissing the application for reduction of the fixed term of the tenancy and adjourning the other claims.
- On 6 December 2024 Mr Brennan and Ms Manawatu filed another application (application number 5099868) for reduction of the fixed term tenancy but, at a directions hearing held before me on 18 February, that application was amended to an application to terminate the tenancy for breach by the landlord (pursuant to section 56 of the Residential Tenancies Act 1986 (the Act)). I also made an order, with the agreement of both parties, that possession of the premises are granted to Mr and Ms Williams at 11.59pm on 23 February 2025.
- Then, on 16 January 2025, the landlords filed a cross application (application number 5135549) for rent arrears of $3,450.00 until a new tenant was found and compensation for: • Costs to clean the premises: $445.05 • Carpet cleaning costs: $340.00 • Costs to find a new tenant: $2,415.00 • Work completed by contractors for the tenants: $200.00 • Plumber invoice: $161.00 The landlord’s claims Rent and cleaning
- Mr Brennan and Ms Manawatu accept the claim for rent and the claim for carpet cleaning. They also accept that the cleaning was required but claim that on 28 February 2025, Ms Williams agreed that they could return to the premises to complete the cleaning work but then did not allow them to do so.
- Ms Williams accepts that she agreed to the tenants returning to complete the cleaning work but that they were given one day to respond and did respond until 2 March. They had by then decided to have the work completed themselves.
- Ms Manawatu did not dispute Ms Williams evidence that they did not respond to the agreement to have the work completed within the time frame given. Moreover, they vacated the premises on 6 December and possession of the premises was not formally retuned to the landlords until 23 February 2025. They therefore had ample time to return to the premises to complete any necessary work to bring it to a reasonably clean standard.
- I therefore find the tenants liable for the costs claimed to clean the premises. Costs to find another tenant
- Mr and Ms Williams claim the sum of $2,350.00 being two weeks rent plus GST for costs to find another tenant.
- Where a tenant abandons a fixed term tenancy before its expiry, a landlord is entitled to rent until a new tenant is found or the end of the fixed term, whichever is the earlier. The landlord is also entitled to the reasonable costs incurred to find a new tenant. Thus, the landlord must provide invoices or other evidence to support the actual costs they incurred to find the new tenant and they did not do so here. This claim is therefore dismissed. Work completed by contractors for the tenants
- This claim is dismissed because again Mr and Ms Williams did not provide evidence to support the cost they say they paid to contractors to complete work for Mr Brennan and Ms Manawatu. Plumber’s invoice
- Ms Williams said that the claim for costs incurred for a plumbers call out is for a call out in January 2025. The purpose of the call out was to check the toilet in the premises after the tenants had complained, during the tenancy of a smell emanating from the toilet (I deal further with this claim below).
- However, no evidence was provided as to the cost of this call out. Moreover, Ms Williams said it was done to support their claim that there was no breach of their obligations with respect to the toilet. It is therefore a cost associated with establishing a claim or defence and these costs are not recoverable in the Tribunal.
- This claim is therefore also dismissed. The tenants’ claims Bond
- There was no dispute that the bond was not lodged with the Bond Centre within 23 working days of receiving it, as required by section 19(1)(b) of the Act. The bond was paid on or about 6 April 2024 and it was not lodged until late November 2024, after the tenant’s first application was filed. Failure to lodge the bond in accordance with section 19(1)(b) is an unlawful act for which exemplary damages may be awarded up to a maximum amount of $1,500.00.
- The threshold requirement for the payment of exemplary damages is that the unlawful act was committed ‘intentionally’. In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court held that this requires the Tribunal to be satisfied 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. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.
- Ms Williams said that she was aware of the obligations with respect to lodging the bond, therfore their failure to comply can only be interpreted as intentional and I consider an order for exemplary damages is appropriate.
- Ms Williams said that, while she was aware of the requirement to lodge bonds, she did not understand the importance of doing so. Also relevant to my assessment of the amount of exemplary damages that should be payable is that the bond was lodged, albeit late, and the effect on the tenants of it being lodged late appears to be minimal. However, it is in the interests of tenants and the public interest that the bond is lodged promptly with the Bond Centre as a protection against a landlord’s unreasonable retention of it. Taking all these factors into account I order exemplary damages of $350.00 to be paid by Mr and Ms Williams to Mr Brennan and Ms Manawatu. Repairs and maintenance
- Section 45(1)(b) of the Act provides that the landlord must provide and maintain the premises in a reasonable state of repair. Section 40(1)(d) of the Act is also relevant here. It requires the tenant to notify the landlord, as soon as possible after discovery, of any damage or of the need for repairs to the premises. Thus, once Mr Brennan or Ms Manawatu notified the landlords or the landlords became aware of the need for repairs, the obligation in section 45(1)(b) requires those repairs to be attended to in a timely manner.
- The District Court has considered the obligation in section 45 in Collins v Professional Hutt City Ltd, DC Wellington, CIV-2009-085-001431, 24 February 2010: ”... the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a time frame which is reasonable in the circumstances; and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem may be.”
- Where the landlord is in breach of the obligation in section 45(1)(b), the tenant may be entitled to compensation. A failure to comply with section 45(1)(b) is also declared to be an unlawful act for which exemplary damages may be payable.
- Mr Brennan and Ms Manawatu claim that Mr and Ms Williams did not repair in a timely manner or at all: the ensuite and laundry door handles/latches; three windows; and an issue with a smell coming from the toilet. Ensuite and laundry door handles/latches
- The problem with the laundry door (which led to the garage) is that it would not stay closed unless it was locked because the latch was faulty. The problem was in existence at the start of the tenancy and there were several attempts to repair it. Then, on 20 September, Ms Manawatu advised the landlords that the handle/latch was not working again. A new handle and latch were installed on 29 November 2024.
- Sometime in mid-September 2024, Ms Manawatu said that the ensuite door stuck closed while her mother was inside the ensuite. She said that someone had to break the door handle to get her out. She advised the landlord of the issue soon after and a new door handle was installed in early to mid-December.
- I find that there were unreasonable delays in having the issues with both doors remedied after Mr and Ms Williams became aware of the need for repairs. In the circumstances I consider the sum of $150.00 reasonable to compensate Mr Brennan and Ms Manawatu for the delays. In assessing the amount of compensation I have taken into account that the issue with the laundry door was relatively minor and there were attempts by the landlords to remedy it before it was eventually replaced. I have also taken into account that some of the delays in having the laundry handle replaced were because Ms Manawatu had disposed of key parts of the handle (which meant it could not be repaired or reused) and a special order had to be made because a handle to fit the door could not be purchased “off the shelf”. I have also taken into account that, on 18 October, a contractor went to repair the ensuite door handle, but Ms Manawatu had disposed of it which required another handle to be purchased, causing an additional delay.
- I do not consider this an appropriate case for an order for exemplary damages. Mr and Ms Williams did eventually complete the repairs, and this is not a case where the landlords have deliberately flouted their obligations to repair and maintain the premises in a timely manner. Toilet smell
- Repairs to the toilet had been completed soon after the tenancy commenced. On 22 August 2024, Ms Manawatu advised the landlords that there was another leak in the toilet. On 27 August, a plumber investigated the issue but could not find any sign of a leak. Then on 2 September Ms Manawatu told the landlords that it was more of a smell rather than a leak. Ms Williams said that they could not detect any smell coming from the toilet.
- I am not satisfied that Mr Brennan and Ms Manawatu have provided sufficient evidence to establish that there was a problem with a smell coming from the toilet. In a text message from Mr Stag (the plumber who attended on 22 August) Mr Stag states that he did not pick up any smell when he was there. The contractor (Keiran) who repaired the door handles also states in a text message dated 29 November that he could not detect any smell. The landlords’ evidence is also supported by the tenants’ evidence where Mr Stag emailed Ms Manawatu (in reply to her questions regarding the smell). Mr Stag again states that he could not detect any smell.
- The claim for compensation and/or exemplary damages for failure to repair the cause of a toilet smell is therefore dismissed. Windows
- Ms Manawatu said that the problem with the three upstairs windows was that they would ‘stick’ and be hard to open. She said that she believed that this was because of draft foam having been put around the windows.
- Ms Williams disputes that there was an issue with the windows that required repair. She said that the reason the tenants could not open them was simply due to the tenants not knowing how to use the locks on the windows.
- Again I am not satisfied that Mr Brennan and Ms Manawatu have provided sufficient evidence to establish that there was a repair or maintenance issue with the windows and this claim is therefore also dismissed. Quiet enjoyment/harassment
- Section 38(1) of the Act provides that a tenant is entitled to have quiet enjoyment of the premises without interruption by the landlord or the landlord’s agent. In addition, section 38(2) provides that a landlord must not cause or permit any interference with the reasonable peace, comfort and privacy of the tenant in the use of the premises.
- The term “quiet enjoyment” has a reasonably settled meaning. It effectively means the right of a tenant not to have the quality of their tenancy significantly impaired by the actions of the landlord (or his or her agent). However, the Tribunal in Smith & Olmstead v Floris Auckland TT 1404/93 9/3/93 has made it clear that when considering whether the right has been breached it must be kept in mind that landlord and tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is therefore important to not allow a simple personality clash or a breakdown in the relationship to become the sole basis for a claim for breach of quiet enjoyment.
- Where the landlord is in breach of section 38, the tenant may be entitled to compensation. Where the breach of the tenants’ right in section 38(2) is sufficiently severe that it amounts to harassment it is deemed to be an unlawful act for which exemplary damages can be awarded.
- On 26 November 2024 Mr and Ms Williams issued a ’14 day notice’ to Mr Brennan and Ms Manawatu advising them that they were in breach of the tenancy agreement by exceeding the number of occupants as stated in the tenancy agreement (two). Mr Brennan and Ms Manawatu claim that Mr and Ms Williams had agreed that their daughter and her baby could stay and therefore the issuing of the notice was in breach of their right to quiet enjoyment and harassment. Ms Williams said that they understood that the daughter and baby were only staying there temporarily, and the daughter’s partner had also moved in.
- I do not consider the issuing of the notice amounts to a breach of Mr Brennan and Ms Manawatu’s rights in section 38. Mr and Ms Williams were simply asserting their rights under the Act. While there may have been a misunderstanding regarding the additional occupants, the 14-day notice includes other breaches of the Act or tenancy agreement, including keeping a cat in breach of the tenancy agreement (Ms Manawatu did not dispute that they had a cat), and being in arrears with rent (the rent summary records that rent was missed during April).
- Mr Brennan and Ms Manawatu also claim that their rights in section 38 were breached because the tenancy “was not a great tenancy” and when they asked for issues to be resolved the landlords would retaliate. Ms Manawatu said that this caused stress in the family.
- Again, I do not consider that this is sufficient to amount to a breach of their right to quiet enjoyment and/or harassment. It is clear that the relationship between the landlords and the tenants had broken down. As mentioned above, this is not sufficient to constitute a breach of a tenant’s right to quiet enjoyment. Termination of the tenancy
- Mr Brennan and Ms Manawatu, in their 6 December application, applied to terminate the tenancy for breach by the landlords of the Act or the tenancy agreement.
- The Tribunal may terminate a tenancy if the Tribunal is satisfied that the criteria in section 56 of the Act has been satisfied, that is: (i) The landlords have committed a breach of the tenancy agreement or the Act; (ii) For breaches which are capable of being remedied, the landlords have been issued with a notice requiring them to remedy the breach within a period of not less than 14 days and the landlords have failed to remedy the breach within the required period; and (iii) The breach is of such a nature or of such an extent that it would be inequitable (unfair) to refuse to make a termination order.
- Mr Brennan and Ms Manawatu claim that Mr Williams and Ms Williams have breached the Act by not repairing or remedying the issue with the toilet smell and not remedying the ensuite and laundry door. They issued a 14-day notice on 20 November 2024 requiring these issues to be remedied.
- The laundry door was remedied within the 14-day period after the notice was issued and I have found that there is no established issue with the toilet that requires repair. It is not clear whether the ensuite door was remedied within the 14-day period but, even if it was not, it was remedied soon after. I therefore do not consider it would be unfair to not terminate the tenancy given the nature and extent of the breach, particularly given that the tenants had vacated by 7 December (17 days after the notice was issued). Moreover, the tenancy has now ended. There is therefore no existing tenancy to terminate.
- The claim for termination of the tenancy is therefore dismissed. The Tribunal application fee
- Both parties have had partial success with their respective claims, and I therefore do not make any order for payment of the application fees each have paid. Suppression
- In their 20 November application, Mr Brennan and Ms Manawatu asked for a suppression order.
- Section 95A of the Act provides that the Tribunal must, on the application of a party who has been wholly or substantially successful in the proceedings, order that the party’s name or identifying particulars not be published (unless the limited circumstances set out in the section apply).
- However, Mr Brennan and Ms Manawatu have been mostly unsuccessful in their 20 November application (and wholly unsuccessful in their 6 December application). Their application for name suppression is therefore not granted.