What was Tenancy Tribunal case 5277459 about?

The tribunal order states: Birdhurst Limited must pay [The tenant/s] tenant/s] $250.00 immediately.

How much money was awarded in case 5277459?

Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 5277459?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5277459?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12793110-Tribunal_Order.pdf.

What was Tenancy Tribunal case 5277459 about?

The tribunal order states: Birdhurst Limited must pay [The tenant/s] tenant/s] $250.00 immediately.

How much money was awarded in case 5277459?

Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 5277459?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5277459?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12793110-Tribunal_Order.pdf.

60 Eden Road, Tasman, RD 2, Upper Moutere 7175 Tenancy Tribunal Case 5277459 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5277459 — net $250.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond not lodged	$250.00	Bond not lodged
Net award	$250.00
Total payable by Landlord to Tenant	$250.00

Claims and awards in Tenancy Tribunal application 5277459 — net $250.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond not lodged	$250.00	Bond not lodged
Net award	$250.00
Total payable by Landlord to Tenant	$250.00

Order

Birdhurst Limited must pay [The tenant/s] tenant/s] $250.00 immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing. The landlord was legally represented by Rob Fitchett and Georgia O’Connor of Rout Milner Fitchett. Rhys Wilkins and Andrea Tomlinson from the landlord were in attendance.
Bridget O’Brien called one witness, Nick Healand. He was initially the second tenant. After departing the tenancy in 2022, he later returned as a flatmate until the end of the tenancy.
A Pre-hearing case conference was held on 13 August 2025. At that time the tenant’s claims were confirmed as seeking compensation of $45,500.00 and/or exemplary damages for the following claims: a. Failure of the landlord to meet its responsibilities (s 45 RTA), b. Retaliatory notice (s 54 RTA), and c. Bond not lodged (s 19 RTA).
In the minute issued after the case conference, I added some explanation regarding evidence. A key point, as stressed in Kaipo v Clarke & McCarthy (DC) TT233/02 was that “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.”
Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be adjudicated.
Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
By accepting the evidence of one person over that of another person, do not infer that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely. Background
This tenancy commencement date is not mutually agreed. There was some discussion as to whether the first tenancy from 4 April 2021 ended, continued or was renewed when a new tenancy agreement was signed for a period commencing 27 April 2022 after the other tenant left and was removed from the tenancy agreement. The contract documents are inconclusive. It appears the agreement of April 2022 is dated such but the tenancy start date remains 4 April 2021.
The tenant claimed it was a continuous tenancy from April 2021. The determination of the start is of some significance as the early start date becomes problematic for the landlord regarding what would then be a late bond lodgement, whereas a new tenancy commencing in April 2022 removes any late bond lodgement but would open a potential Healthy Homes compliance issue 1 for the landlord. Accepting the start date as proposed by the tenant being one tenancy from 4 April 2021 would mean the final compliance date was after this tenancy ended.
The premises was part of a commercial lease of an orchard by the landlord. Little was known about the house history due to this. The landlord provides other tenancies although these are more typically service tenancies. 2
A feature of the tenancy was some churn of staff of the landlord, acting in a management capacity. This, and the lack of written evidence regarding any earlier agreements has been a challenge for the tenant.
I have applied the contra proferentem rule 3 and deem the tenancy start date as 4 April 2021 as claimed by the tenant. The tenant claims Bond not lodged
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.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
A bond was taken at the commencement of the tenancy but it was never lodged until the tenancy agreement was revisited in April 2022 and the failure noted. The oversight was addressed at that time and the bond was lodged.
I find the landlord committed an unlawful act.
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 1 Tenancies started or renewed between 1 July 2021 and 27 August 2022 must have complied with the Healthy Homes Standards within 90 days. 2 Service tenancies are included in the RTA. 3 This rule essentially states that if there is doubt as to the meaning of an agreement, then it is to be read against the drafter of the document, usually the landlord in tenancy situations. other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
In this instance, the impact on the tenant has been minimal as its retention prior to lodging was never used as leverage or inappropriately by the landlord.
The primary consideration here is the public interest.
A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen.
I consider the landlord should have been aware of the requirement and lodged the bond appropriately at the commencement of the tenancy.
Having considered the respective factors, I make an order for exemplary damages for $250.00, being at the lower end of the scale, recognising the initial failure but subsequent correction when identified. Failure to maintain s 45
It is well settled that, the landlord’s obligation under s 45 RTA 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, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Section 45(1)(b), regarding a reasonable state of repair, states this should have regard to the age and character of the premises.
Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects. A landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
Tenant stated prior claims of notification but no evidence. The churn in the landlord’s employees tasked with a management role for this tenancy since commencement compounded the challenge of a lack of written evidence of issues being first raised when claimed.
In her application, the tenant stated she “moved into this property knowing that here were a few things that they needed to finish in order to have the property Healthy homes compliant however no work was carried out to complete what was needed for drainage, heating, insulation and draft prevention.”
Given the start date for HHS was 1 July 2021 – after this tenancy – (apart from installation that predated the other HHS by two years) there was no compliance timeframe specifically relating to HHS from April 2021 so I am not convinced the tenant was correct in her assumption. Further, the landlord provided an invoice from 2019 when a number of HHS features were implemented at that time.
The tenant claims the landlord failed to remedy several repair issues within a reasonable timeframe. I consider each issue in turn. Drainage
The tenant cited an ongoing and significant issue of surface flooding around the premises after rain.
Acceptable drainage of stormwater from downpipes means that water from the roof is directed away from the building in a way that prevents damage, dampness, or nuisance to the property or neighbouring properties.
The general principles may be summarised as: a. Stormwater must be directed into an appropriate outfall: Downpipes should discharge stormwater into a legal and effective drainage system, such as council stormwater drains, soak pits, or other approved systems. b. Water must not pool around the building: Drainage must prevent water from pooling near the foundations or under the house, as this can cause dampness, mould, and structural issues. c. Compliance with local council requirements: The drainage system must comply with local council bylaws and building codes.
There was a problem with surface level flooding at the premises. The tenant provided photos that support that. There were occasions where the water entered the waste system and the specific tank overflowed, requiring draining of the tank. The cause and frequency are disputed.
After one flooding event early in the tenancy, a Novaflo pipe solution was implemented to move the rain from the guttering and downpipes away from the premises. The tenant claimed the configuration was inadequate and frequent flooding still occurred. She also stated that she, or others, were required to regularly move the above-ground pipe down the driveway to facilitate vehicular entry.
The Google Streetview photo shows the pipe extended on that day – the weather appears dry. Rhys Wilkins commented on his observing the pipe being in its extended state rather than coiled on occasions he went past the property.
It seems the pipe was “hiding in plain sight” and no compliance issues were raised by the Tasman District Council (TDC). The TDC website on stormwater requirements do not appear to disqualify the Noveflo solution installed, especially given the rural location and lack of any council stormwater or sewerage mains in proximity.
The frequency of flooding was disputed. There were several major rainfall and flooding events in the region during this tenancy. Many stormwater systems locally were overwhelmed at the time. The landlord submitted the flooding as evidenced reflected very infrequent adverse natural events; the tenant claimed the flooding was a frequent occurrence after any rainfall. Nick Healand, as witness, suggested “a heavy night of rain would fill it up”. He also commented on back seepage from the pipe joins although there was no evidence of this. It is not an obvious problem based on the photos provided, assuming gravity flow down the pipes was not impeded.
Very near the end of the tenancy a contractor was sent to underground the piping. He left before finishing. I do not find the recounting of the exchange at the time and subsequent departure of the contractor to be proven as any failure of the landlord.
The Healthy Homes Standard require that all gutters, downpipes, and drains are in good condition and effectively remove water from the roof to an appropriate outfall. Poor drainage that leads to dampness or water ingress is a breach of these standards.
In terms of the drainage, given the tenancy predates the HHS timeline I consider the evidential burden is with the tenant to establish a failure to maintain. If the tenancy had started in April 2022, as contended by the landlord, I consider the evidential burden would have shifted to the landlord to demonstrate compliance with the HHS drainage requirements.
Given that burden, I do not find the tenant has evidenced a failure of the landlord to ensure stormwater drainage was adequate. I accept significant flooding did occur at times; but given the vast difference in the claimed frequency and magnitude of such events means without evidence of any ongoing issue and notification by the tenant, I fail to conclude the landlord failed such that any compensation should be ordered for flooding or any impact from the above-ground stormwater piping placement. Draught proofing/Door
The tenant claimed a swollen door was a problem as well as a draught problem due to gaps between a door and its framing.
Terina Brenchley, an employee of the landlord and tasked with managing this tenancy, provided a written affidavit. In that, she recalls a November 2024 inspection that identified the need for the back door to be replaced due to draught.
The door was replaced by the landlord.
A series of landlord invoices for other work carried out at the premises were also provided with the affidavit of Terina as evidence of maintenance action by the landlord when notified. Wood burner
The tenant claimed two issues with the wood burner. The first was a lack of adequate movement/earthquake restraint. The second was maintenance of the burner itself.

Was the wood burner compliant?

The tenant provided photos of an attempt to add some restraints. The tenant claim was that the restraints were inadequate. This was supported by photos and also by the witness, Nick Healand. He claimed to have specific knowledge of the requirements that he shared with the restraint installer, but the tenant also provided the seismic restraint requirements per the New Zealand Standard. The relevant section notes the application “where required by the regulatory authority”.
The landlord submitted the wood burner pre-dated the Building Act 2004 and did not require restraints.
If a wood burner was installed before the Building Act 2004 came into force, it is generally not required to be retrofitted with earthquake restraints to comply with current building standards, unless: a. The wood burner is being replaced or significantly altered, in which case current building code requirements (including earthquake restraints) would apply. b. There is a specific local council bylaw or requirement that mandates retrofitting for safety reasons.
Wood burners (and other forms of heating) must be safe and in good working order, but they do not specifically require retrofitting earthquake restraints for older, compliant installations that predate 2004.
There was no evidence of any specific requirement from the Tasman District Council for earthquake restraints on wood burners installed before 2004, or this one specifically.
There was no evidence to establish the wood burner was installed after 2004.
Therefore, no earthquake restraint was mandatory for a wood burner such as this, installed pre-Building Act 2004, unless it was replaced, altered, or a local bylaw requires it. It appears an older, compliant installation.
This claim is dismissed.

Was the wood burner maintained?

The tenant claimed she had to arrange and install fire brick replacements. While the arrangement was unusual it was not inconsistent with other flexible arrangements during the tenancy. I do not find there are any grounds for any specific compensation regarding wood burner maintenance and the tenant involvement.
The landlord submitted an offer in November 2024 to replace the wood burner with a heat pump was made but declined by the tenant. This submission was not challenged. The tenant kept tropical plants that required a high temperature.
Earlier, a repair to the firebox door was made by the landlord. Based on the submissions and photos, the door was failing to close tightly. The solution was the addition of washers to reinstate tension when the door was closed during burning, ensuring airtightness as well as safe operation.
The tenant claimed the door would fail and embers had fallen out. The landlord disputed this and pointed to the lack of any burn marks that would be expected following any such event. The limited photos do not evidence such a likelihood or event.
The claim for compensation due to any landlord failure regarding the wood burner is not proven and the claim is dismissed. Retaliatory notice
On 11 May 2025 the landlord served a notice to terminate. The tenancy was to end on 15 August 2025. The landlord required the premises for service accommodation.
The tenant claims the notice was retaliatory.
Section 54 of the Residential Tenancies Act 1986 provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: [I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00 (see s 54(2), (3) and Schedule 1A RTA).
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 (see s 109(3) RTA).
There are four issues to consider: a. Does the termination notice comply with s 51 RTA? b. If so, was the application made within 28 working days of the notice being served? If not, are there grounds to extend the notice period under s 96(2) RTA? In Realty House Whakatane Limited v Eschbank [2020] NZDC 16081, the District Court held that the time limit for filing an application is mandatory but may be extended in limited circumstances. c. Has the tenant proved that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord? d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?
The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.
Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
The landlord submitted there was no immediate correlation with any tenant assertion of her rights as a tenant and the notice to terminate. I agree that appears so.
The landlord explained the business process leading to the desire to provide an employee with a service tenancy. This was supported by written evidence. I consider it has justified the need for the premises and exercised a statutory option available to it.
Even if I am wrong that there was no linkage of significance between any tenant assertion and the notice, the evidence from the landlord regarding the business need for the premises to return satisfied me the driver for the notice was not any tenant action but a legitimate need.
The notice was not retaliatory. The claim is dismissed. Summary
This was a long tenancy that ended with several landlords failures claimed by the tenant, some current, others historic. The tenant application was lodged after the notice to terminate.
A timelier application during the four-year tenancy by the tenant to the Tribunal may have assisted the tenant in ensuring evidence or relevant persons were more readily available. The challenge of a late application, with what was predominantly verbal (or lost written) communication means the evidential burden becomes tougher for the applicant to overcome.
I did consider if the positives during the tenancy such as modest rent that was inclusive of utilities may have outweighed some issues such that they were not raised earlier.
The evidence of the landlord appears to be one of responsiveness to issues when clearly raised, as demonstrated in the invoices provided.
I had some doubts about the drainage system if subject to an up-to-date HHS assessment (rather than relying on a 2019 report) but nothing has been proven by the tenant under the general maintenance requirements of s 45 RTA that establishes grounds for any specific compensation order. I am not required to make a determination under the relevant HHS standard, given the tenancy commencement date.
The tenant sought over $45,000 in compensation. Such a sum would indicate serious failures by the landlord that should have been formally raised at the time and not after the tenancy was to end. The evidence does not support the bulk of the claims. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The tenant requested suppression in her application. As she has not been wholly or substantially successful, suppression is not ordered. I do not consider there are any special circumstances such that I should exercise my initiative in the alternative and order suppression. The request is declined.

Tenancy Tribunal case 5277459 — Exemplary damages at 60 Eden Road, Tasman, RD 2, Upper Moutere 7175

At a glance

Tenancy Tribunal case 5277459 — Exemplary damages at 60 Eden Road, Tasman, RD 2, Upper Moutere 7175

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the wood burner compliant?

Was the wood burner maintained?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the wood burner compliant?

Was the wood burner maintained?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.