Published tribunal order
Tenancy Tribunal case 5270159 — Exemplary damages at 16 Fontenoy Street, Mount Albert, Auckland 1025
Decided 2 Aug 2025 · Published 2 Aug 2025 · Application 5270159
- Exemplary damages
Order
Kāhui Tū Kaha Limited must pay [The tenant/s] $6,639.07 immediately, as calculated in the table below: DescriptionTenant Compensation for loss of amenity$3,312.07 Exemplary damages for failing to maintain$1,800.00 Exemplary damages for breach of work order$1,500.00 Filing fee reimbursement$27.00 Total award$6,639.07
Reasons
- Ms Walters attended the hearing with Tim Tsiklauri, who acted as Ms Walter’s representative.
- Lyssa Moka attended for Kāhui Tū Kaha Limited
- Ms Walters claims that Kāhui failed to maintain the premises, failed to comply with the Tribunal’s work orders from its decision earlier this year, and issued her with a notice with a motive of retaliating for her exercising her rights under the Residential Tenancies Act 1986 (RTA).
- For remedies, she seeks compensation and exemplary damages. Background
- The tenancy began on 18 November 2022. The premises is a four-bedroom house with two bathrooms.
- Ms Walters lived in the premises with her children.
- Kāhui is a social housing provider. It leases these premises from the owner via Good Neighbours Real Estate Limited. Kāhui in turn rent the premises out to Ms Walters.
- Within a year of the tenancy beginning, Ms Walters experienced significant maintenance problems at the premises that the landlord was not promptly fixing. On 30 November 2023, Mr Tsiklauri wrote a letter on Ms Walter’s behalf to her property manager at Kāhui, confirming among other things: (a) Two of the four bedrooms leaked during heavy rain. (b) One of the bathrooms had no electricity (c) The kitchen tap was leaking. (d) Water pressure was poor, and the water temperature was erratic. (e) The outside taps were leaking.
- There is no question that Kāhui received this letter because they acknowledged receipt of it in an email dated 1 December 2023: Hi Valerie and T Tsikalouri [sic]. Thanh [sic] you for your Complaint Letter dated 30/11/23. The letter has been referred to our tenancy team.
- About one year later, on about 27 November 2024, he owner of the premises had some modest leak work done on the roof at the cost of $216.09. That work did not appreciably lessen the leaks.
- The tenant used the back bedroom only for storage from about 30 November 2023. Both bedrooms have been uninhabitable since 21 April 2025 because the leaks have worsened over time.
- The bathroom’s lack of electricity was not fixed until 18 July 2024, almost eight months after Ms Walters reported the problem.
- The tenant also experienced problems with the kitchen mixer for about six months. The heat pump stopped working and was not replaced for about two-and-a-half months. The tenant could not use the stove and it took possibly about two months for the stove to be replaced.
- On 21 August 2024, the tenant brought a claim in the Tribunal for the landlord failing to maintain the premises. 1 The Tribunal heard the claim on 13 March 2025 and issued work orders requiring the landlord (by 17 May 2025) to replace the toilet, repair a leaking outdoor tap, repair the front gate, fix the rear bedroom and master bedroom’s leaks, and fix electrical problems. 1 File number 4978868.
- The landlord provided evidence that the front gate was replaced on 23 March 2023 (prior to the date the Tribunal required the work to be done). Work was done on the outside tap, and the toilet on 14 July 2025, hot water cylinder issues on 16 July 2025, electrical wiring and extractor fan on 18 July 2025 (all of these after the date the Tribunal stipulated). The most serious problem, the bedroom leaks, had still not been fixed as at the date of hearing.
- Good Neighbours Real Estate, whose principal leases the premises to Kāhui, issued Kāhui with notice terminating Kāhui’s lease this year. Kāhui issued Ms Walters with a termination notice coinciding with the termination of its own lease.
- Good Neighbours secured a possession order against Kāhui in the Tribunal on 17 July 2025 to take effect on 1 August 2025. 2
- The issues to be determined are: (a) Did Kāhui fail to maintain the premises? (b) Did Kāhui failed to comply with the Tribunal’s work orders? (c) Was Kāhui’s notice retaliatory? Did Kāhui fail to maintain the premises? Legal principles
- Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) 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...
- Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 3 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 4 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe 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 might be...” 2 Good Neighbours v Kāhui Tū Kaha Limited [2025] NZTT 5295739. 3 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 4 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15].
- Tenants have a duty to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repair. 5 However, Landlords also have an obligation to repair things that are apparent from observation: 6 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion
- The tenant reported the issues mentioned in paragraph 8 above to the landlord on 30 November 2023. Kāhui did not repair most of the problems until July 2025, more than 18 months later. Kāhui had still not repaired the most serious issues, the leaks even at the date of hearing. Remedies
- The unaddressed maintenance issues had a significant impact on the tenant’s amenity in the premises. The water ingress to the rear bedroom led to the tenant having to use the room as only a storeroom. The master bedroom’s wall below the main window became waterlogged and crumbled. The house was damper, colder, and less healthy than it should have been.
- The poor water pressure and temperature were probably due the hot water cylinder coming to the end of its useful life. The tenant has struggled with the erratic heat and pressure throughout the tenancy.
- Having regard to the house’s disrepair and the duration of the disrepair, it is appropriate to order compensation at the rate of 25 per cent of the weekly rent the tenant paid (between $142.00 and $159.00).
- 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 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 RTA, namely: (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. 5 Residential Tenancies Act 1986 (RTA), s 40(1)(d). 6 See n 2. (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 Act, which for a breach of s 45(1)(b) is $7,200.00.
- The landlord’s intent was to provide reasonable quality social housing in an economically sustainable way. The landlord tried to get the lessor Good Neighbour’s principal to undertake the repairs, but the lessor has refused. Other factors are the opaque, poorly-drafted lease agreement between the landlord and the lessor, and the landlord’s confusion over who was responsible for the repairs.
- It is in the tenant’s interest to receive exemplary damages that vindicate her harm. It is in the public interest to deter landlords from failing to maintain their premises to a reasonable standard by ordering exemplary damages in appropriate cases. I consider it is just to make an award of exemplary damages.
- Having regard to all of the circumstances, I set the exemplary damages at $1,800.00. Did Kāhui fail to comply with the Tribunal’s work orders?
- Kāhui breached the Tribunal’s work orders in its decision on 13 March 2025.
- Breaching a work order without reasonable excuse is an unlawful act, for which exemplary damages may be awarded up to a maximum of $5,000.00. 7
- Kāhui’s representative attended the hearing that led to the work orders. The Tribunal sent the Tribunal order to Kāhui. Kāhui did not dispute it was liable to carry out the work orders. I find Kāhui knowingly committed the unlawful act.
- As discussed, 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. 8
- Kāhui’s intent was as discussed in respect to its failure to maintain. Having regard to that factor and the other factors I must consider, it is just to award exemplary damages, which I set at $1,500.00. Did Kāhui give Ms Walters a notice with a retaliatory motive?
- At the last hearing, Kāhui applied for termination of the tenancy for the reasons discussed in that decision.
- My sense is that it was the lessor rather than Kāhui that was pressing for termination.
- At this hearing and, if my recollection serves in the last hearing, Kāhui’s representatives’ attitude towards the tenant was balanced, fair, and generally supportive of the tenant. 7 RTA s 108(2A) and Schedule 1A. 8 RTA s 109(3).
- The representatives did not betray any animus or vindictiveness towards Ms Walters. Nor were they over-defensive about Ms Walters claims. Rather, they demonstrated an objective approach that did not seek to blame either Ms Walters or the lessor. Kāhui’s failings likely arise from limited resourcing and limited time. Its overall motives seem to genuinely, considerately, and non-judgmentally provide decent housing to Ms Walters and others.
- Kāhui says it gave notice because the lessor had ended its lease to Kāhui. I accept that explanation.
- In some ways, Kāhui has been “the meat in the sandwich” during this tenancy. The house clearly needed some expensive repairs done, such as replacing at least part of the roof. But Kāhui as a social housing provider wanted to use its limited resources wisely to help as many of its clients into housing as it could, and not spend its funds on improving the lessor’s asset.
- On the other side, the lessor wanted Kāhui to get rid of Ms Walters and did not to improve the house while she was still there.
- The situation was fraught. However, the claim here is not about the overall unsatisfactory situation, but whether it is proved on the balance of probabilities that Kāhui’s notice was based wholly or partly on a retaliatory motive. I am not satisfied on the balance of probabilities that Kāhui had such a motive.
- Therefore, this claim must be dismissed. Bond
- I had intended to release the bond to Ms Walters. However, the tenancy did not end until yesterday. It is not appropriate that I order the bond’s release at this stage because the landlord may have a claim against the bond if Ms Walters does not fulfil her move-out obligations, for example. Filing fee
- Kāhui must reimburse Ms Walters for the filing fee. 9