What was Tenancy Tribunal case 5214474 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 5214474?

Property Damage: $3,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5214474?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5214474?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12436533-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5214474 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 5214474?

Property Damage: $3,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5214474?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5214474?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12436533-Tribunal_Order_Redacted.pdf.

70 Memorial Avenue, Ilam, Christchurch 8053 Tenancy Tribunal Case 5214474 — Property damage

Claims and awards in Tenancy Tribunal application 5214474 — net $3,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: General damages	$3,000.00	97. The landlord will pay $3,000.00 in exemplary damages to the tenant to reflect all of the above successful claims.
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$3,027.00
Total payable by Landlord to Tenant	$3,027.00

Claims and awards in Tenancy Tribunal application 5214474 — net $3,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: General damages	$3,000.00	97. The landlord will pay $3,000.00 in exemplary damages to the tenant to reflect all of the above successful claims.
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$3,027.00
Total payable by Landlord to Tenant	$3,027.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Phuong Nguyen and Hung Chan Nguyen must pay [The tenant/s] $3,027.00 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
The applicant claimed that: a. The bond was not lodged at the Bond Centre in accordance with s19 (1) (b) of the Residential Tenancies Act 1986 (the Act). b. The landlord did not comply with their obligations in respect of repairs and maintenance under s45 (1) (b) of the Act particularly in respect of the roof and the back door. c. The property did not comply with the Healthy Homes Regulations in regard, particularly, to draughts. d. The landlord improperly terminated the tenancy under section 60AA of the Act (knowingly terminating a tenancy when not lawfully entitled to do so) or section 54 of the Act (giving notice in retaliation for tenant exercising lawful rights).
If proven, all of the above breaches are unlawful acts for which the landlord may be liable for exemplary damages.
Very limited documentation or supporting evidence was provided by either the applicant or the landlords.
The primary landlord (the property owner) has limited English and was assisted by a translator at the hearing. His daughter was also named on the tenancy agreement and had acted as an English-speaking liaison and property manager.
The tenant gave evidence that the bond was not lodged at the bond centre. His mother had asked the landlord for a bond release form at the end of the tenancy and he was not provided with such a form. The bond was refunded into the tenant’s bank account by the landlord immediately after this.
The landlord acknowledged that the bond was not lodged and said that he was unaware of the requirements.
The tenancy agreement provided by the landlord included a clause saying, “...Tenant is to be clean, tidy and respectful to the house or risk eviction after 2 weeks notice. Tenants must notify the landlord of any property issues eg damages immediately. Bond is to be held by the landlord. If two missed payments consecutively, landlord may evict tenant. Inspection once every six months. Landlord will notify a few days beforehand.”
The tenancy agreement is part of a tenancy services standard form, and the above added term contradicts the standard wording on that document and is contrary to the requirements of the Act in a number of ways.
The standard wording includes information as to the requirements to provide a copy of the agreement to the tenant, to provide insulation, insurance and Healthy Homes statements and to lodge the bond at the Bond Centre.
It also includes information about ending a tenancy and the (at the time this form was drafted current) legal requirements around how and when that can be done.
The landlords did not comply with any of these obligations despite them being clearly recorded in the document they and the tenant signed. They included handwritten terms (above) which are unlawful.
A search of the records showed that a bond had previously been paid to the bond centre by this landlord in relation to this property.
The landlord said that was when his son assisted with the management of the property, and this was now managed by his daughter who confirmed that she was unaware of the requirements.
The landlord has committed an unlawful act by not lodging the bond at the bond centre within the required time (or at all).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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 under section 109(3) of the Act.
I consider that this unlawful act was committed intentionally.
The landlord had previously lodged a bond at the bond centre for this property and should have known that this was a requirement for each tenancy.
The agreement that the landlord signed clearly states that this is a requirement of the Act.
The landlords had turned their mind to the bond as it was referred to in their written terms.
There is no evidence that the landlord had any bad intent in committing the unlawful act and the tenant did not suffer as a consequence as the bond was refunded immediately on the tenancy ending.
Bond money belongs to tenants and needs to be protected by being paid to the Bond Centre. It is in the public interest that this should be attended to, and a landlord should not be able to claim ignorance of the requirements to continue to avoid legal obligations. A tenancy is a business and business owners should make themselves aware of the legal requirements of their business.
See below for discussion of quantum.
In terms of the tenant’s claim that the landlord failed to maintain the property limited evidence was provided.
Of most concern to the tenant was the property roof and the back door.
The roof leaked badly in a heavy rain in July 2023. The tenant advised the landlord who was at the airport about to board an international flight. They were unable to arrange for repairs at such short notice and after hours.
They asked the tenant if he could arrange it and take expenses out of the rent. The tenant agreed and arranged a repair very quickly.
An email invoice was dated the next day ($500).
Although it is not ideal that the tenant was expected to arrange repairs himself, the repair was arranged quickly, and the landlord allowed the costs to be taken out of the rent.
There is no failure to maintain, or associated breach proven in relation to the roof leak.
The tenant was also very concerned about the back door. He said that he had mentioned mould on the door at the beginning of the tenancy, but the landlord did not recall this saying the first mention of the door being an issue was about a year into the tenancy (of approximately three years’ duration).
Text messages were provided to show communication regarding the door being wet in August 2023. The communication refers to earlier discussions nearer the beginning of the tenancy confirming the tenant’s recollection that it had been mentioned early on.
There were also some photographs and video stills provided of window and door joinery showing that it was generally in poor repair.
The wooden surrounds were water damaged and showed signs of rot. The tenant provided photographs to show that he had moved the catches on some windows, as they were difficult to use in the current position due to soft/rotten timber.
The back door was a particular issue as the tenant felt it was not secure due to the extent of the rot and damage.
The landlord gave evidence that they did not consider this an urgent problem, but they agreed to allow the tenant to replace the doors himself (at the landlord’s cost) as he was so concerned.
There were some messages about this during June and July 2024 and the tenant clearly spent some time looking at options for replacement.
The landlord consented to one set of doors being fitted but the work was not completed.
Further messages were provided from October 2024 which suggest the problem had been ongoing and continuing to cause distress to the tenant.
The tenant again agreed to locate a door but thought a builder would need to install it given the damage to the frame.
In late November the landlord messaged to say that they were having trouble finding someone who could replace the door or who had the time to find a replacement door.
The landlord also said that they could not afford to pay a high price for the repairs and offered to let the tenant leave (the fixed term tenancy) with two weeks’ notice.
In early October the landlord offered to have someone have a look at the door to coincide with an inspection. There is no evidence to confirm whether this meeting went ahead but in late November a tradesperson was making arrangements directly with the tenant when the landlord said that the tenant refused access.
The tenant conformed that he had refused access on one occasion but said it was because the time did not suit him, and no notice had been given.
Throughout these discussions there was some remarks about mould, but no mould was visible in the photographs.
There was also a suggestion that the tenant’s use of the door had somehow made the problem worse. There was nothing in the photographs provided to suggest that this was a problem caused by anything other than an old badly rotten door.
There is no doubt that the door was in very bad repair. It is very likely that this was a security issue as the tenant claimed. It was also clear that this was a significant problem for the tenant and that he had been complaining about it for a very long time.
In this instance, I find that the landlord has failed to maintain the premises and that this is a breach of their obligations under the Act and an unlawful Act for which exemplary damages can flow.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest under section 109(3) of the Act.
It appears from the information provide, that the main reason for the landlord’s reluctance to repair or replace the door was the perceived cost of doing so.
It was clearly distressing for the tenant and was a matter of security rather than just appearance or inconvenience.
It is in the public interest that landlord’s keep rental properties well repaired particularly where repairs relate to the security of the premises.
See below for discussion of quantum.
The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Act, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant considers that the landlord has failed to comply with the HHS draught stopping standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 under section 45(1A) of the Act.
One photograph provided shows that there is an unreasonable gap in one bedroom window. Other photographs confirm that the window joinery is damaged and rotten but do not show any obvious unreasonable gaps.
The tenant gave evidence that he had to modify latches on various windows to allow the windows to close property. Photographs were provided to confirm this.
The landlord should have a Healthy Homes assessment and should have provided a statement with the tenancy agreement as per the compliance dates above. No assessment has been completed at any time and no information as to compliance was available.
With the limited information I have from the tenant and no information from the landlord, I find it more likely than not that the property does not comply with the standards relating to draughts.
Failure to provide the HH statement is also an unlawful act from which exemplary damages can flow.
I find Phuong Nguyen and Hung Chan Nguyen committed an unlawful act by not complying with HH requirements and by not provided a statement with the tenancy agreement.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest under section 109(3) RTA.
The landlord said they were unaware of the HH requirements, but it has now been nearly five years since these requirements have been current and they were signposted well before and have been well-advertised throughout. A landlord should make it their business to be aware of the legal requirements and, as stated above, the signed tenancy agreement included pre-printed information about HH requirements and the compliance dates and was signed by the landlords.
See below for a discussion of quantum.
The tenant alleges that the landlord ended the fixed term tenancy unlawfully and also in retaliation for the tenant’s complainants about failures to maintain as outlined above. These are unlawful acts from which exemplary damages may flow.
The initial tenancy agreement was for a fixed term of one year to 21 June 2023. On or near the expiry date, the year was changed to the following year and the changes were signed by both parties thereby extending the fixed term for two further terms of one year each.
The final expiry was to be 21 June 2025.
The landlord purported to end the tenancy with approximately five weeks’ notice in about March 2025. Limited information was available in relation to the tenancy ending and neither party had a good recollection of the dates or notice periods.
In February the tenant messaged the landlord asking when the tenancy ended, and the landlord said around June.
The next messages provided show the tenant saying he will be leaving in two weeks from the end of March. The landlord replied that the “agreed” date was in May.
Between these dates the parties both confirmed that the landlord had asked the tenant to move so that the property could be painted and/or repaired and the tenant had agreed to do so.
There was an “agreed” date as above and eventually the landlord accepted the tenant could leave earlier than that date to avoid paying double rent.
The tenant messaged saying that the landlord was making him leave the tenancy before the end of the fixed term, so he was leaving earlier as he had found somewhere and was not able to pay two lots of rent.
The landlord then said he could stay until the end of the term and the tenant declined referring to the work that needed to be done and had not been attended to. No further messages were provided but the parties must have agreed to the earlier date as the tenant moved out on 10 April and the bond was refunded in full as stated above.
The tenant did not believe that work was being done to the property as he had seen people living there within a short time of leaving.
The landlord confirmed that his cousin was living there while work was being done and that the painter was living there also. They confirmed that no rent was being paid by either occupant while the renovations were in progress (which they still are).
Although I acknowledge that the tenancy was for a fixed term and that the landlord seems to have ended it early, there is no information about the specifics of the arrangement or the notice periods. The landlord clearly wanted the tenant to stay longer than he did but accepted his shorter notice in the end.
There is insufficient information before the Tribunal to make any assessment in relation to this claim.
It is possible that the landlord wanted to end the tenancy because of the tenant’s complaints but it is just as likely that the landlord wanted to end it so that all the required work could be done to make the property more acceptable to any further tenant. By all accounts, the property did need a lot of work.
The tenant should not have been asked to leave before the end of the fixed term but he clearly agreed to do so and gave evidence that his current situation is preferable, so it seems to have worked out better for him and the landlord released him from his rent obligations before the “agreed” May date.
I find insufficient evidence to confirm any breach in relation to the end of the tenancy and no damages can flow from this.
I have found breaches on the part of the landlord in relations to nonpayment of bond, failure to maintain and failure to comply with the HHS in relation to draughts.
In this case, multiple additional breaches of the Act became apparent during the hearing and when reviewing the evidence.
Only some of those breaches (as discussed above) were addressed in the tenant’s application.
The landlord was remorseful for the breaches and confirmed that they would find out what the legal requirements are and make sure that they comply from here on.
Both parties provided evidence in an honest and open manner. The landlord was very apologetic and remorseful when the various breaches were pointed out.
I accept that the landlord was unaware of some of the requirements of the Act (despite many of them being recorded in a legally binding agreement which they signed).
The property owner has limited English, and his daughter was called upon more for the day-to-day communications with the tenant than for any more detailed understanding of the legal requirements.
The landlord’s breaches are a result of a lack of care and attention rather than any more negative motivations.
Even so, as I have said above, landlords must make themselves familiar with the legal requirements if they wish to manage residential tenancies. Alternatively, they can engage a professional property manager who is paid to ensure that properties and tenancies comply with the law.
Unlike general damages, exemplary damages are a punishment for breaches of the Act. The same considerations that go into determining whether a party should be liable for exemplary damages also contribute to assessment of quantum.
I have limited the exemplary damages to what I feel is an appropriate amount to reflect the tenant’s distress and hardship but also the landlord’s culpability.
The landlord will pay $3,000.00 in exemplary damages to the tenant to reflect all of the above successful claims.
The amount ordered is proved.
The landlord must ensure that they fully comply with all requirements of the Act before using this property as a residential tenancy again. If they are unable to navigate these requirements, they should have the property professionally managed to ensure compliance.
As [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 5214474 — Property damage at 70 Memorial Avenue, Ilam, Christchurch 8053

At a glance

Tenancy Tribunal case 5214474 — Property damage at 70 Memorial Avenue, Ilam, Christchurch 8053

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions