Published tribunal order
Tenancy Tribunal case 5298782 — Leaks at 17 Jury Lane, Woodend, Woodend/Ravenswood 7610
Decided 10 Oct 2025 · Published 10 Oct 2025 · Application 5298782
- Leaks
Order
- The tenants’ application is dismissed.
- The tenants surrendered the tenancy, and it ended on 19 August 2025.
- [The tenant/s] and [The tenant/s] must pay A1 Property Managers Limited as Agent for Jade Whiteman and [The landlord/s] $1,420.75 immediately, calculated as shown in the table below.
- The landlord’s claim for an electrical call-out is dismissed.
- The Bond Centre is to pay the bond of $2,400.00 (6456970-001) to A1 Property Managers Limited as Agent for Jade Whiteman and [The landlord/s] immediately.
Reasons
- All parties attended the hearing on 19 August 2025. Mr Wilson represented the landlord.
- The tenant’s application filed on 1 July 2025 claims termination of the tenancy and compensation and exemplary damages for breach by the landlord mainly of their obligations in relation to the condition of the premises.
- The landlord’s application filed on 1 August 2025 claims rent arrears and compensation for two abortive contractor call-outs. Background
- The tenancy began in December 2022.
- The premises consist of a newly built 4-bedroom house completed in 2022. This was the first tenancy of the premises.
- The tenants seemingly lived reasonably happily in the premises until June 2025. On 17 June they sent the landlord an email seeking a 12-month renewal of the tenancy and stated that they had “really enjoyed living (in the premises)”.
- The landlord was not willing to grant another fixed term and the tenancy would therefore become periodic when the fixed term expired on 5 September 2025.
- The tenants raised issues concerning rodents entering the premises, mould, draughts and electrical problems.
- They claimed that living in the premises had caused them to suffer ill health and that the premises were uninhabitable.
- On 30 June the tenants served a notice on the landlord under s59 of the Residential Tenancies Act 1986 (the Act), based on complete or partial destruction or serious damage to the premises rendering them uninhabitable, purporting to end the tenancy two days later. The landlord rejected the notice.
- The tenants vacated the premises on 4 July.
- The landlord re-let the premises on 20 August 2025. Law
- Section 45 of the Act requires the landlord to provide and maintain the premises in a reasonable state of repair and to comply with any relevant legislation relating to buildings, health and safety so far as they apply to the premises and to comply with Healthy Homes Standards.
- The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities. That means proving that all the elements of the claim are more likely than not to be true.
- The fundamental elements of the tenants’ claims are that - a. The landlord has breached their obligations in some respect. b. The breach has negatively affected the tenants (for example their health or their enjoyment of the premises). c. In relation to the claim for termination that the breach has rendered the premises uninhabitable. Discussion and Decision on the Tenants’ Claims
- For the following reasons I have found that the tenants have not proved their claims and that their application must therefore be dismissed.
- The tenants say that after they sought a renewal of their fixed term, they discovered serious defects in the premises that have caused them to suffer ill health. They say that their health deteriorated during the tenancy, but they did not attribute that deterioration to the condition of the premises until they investigated and made enquiries after their renewal request was refused.
- One of their main contentions is that unsealed gaps at the front of the house allowed rats and mice to enter the roof space of the house that the excreta of these vermin contaminated the premises.
- The gaps they refer to are at the bottom of the outside cladding at the front of the house. The cladding is installed in such a way as to allow moisture to escape from the space between the outside cladding and the inside cladding (the cavity). That means that there is a gap between the outside cladding and the timber framing. That gap is meant to be guarded by the installation of a cavity closure strip to prevent vermin and other undesirable things to enter the space.
- The strip was installed when the house was built, but for a short section of the cladding, the strip did not completely cover the gap. The tenants say that the gap allowed vermin to enter the space and find their way into the roof space.
- The relevant building regulation requires the gap to be protected. Arguably, the fact that the strip did not completely close the gap means that the landlord did not comply with a regulation relating to buildings and health that applied to the premises. I note that the landlord would not have known that and so no fault can be attributed to them.
- Mr Wilson argued that the premises did comply because the strip was fitted, albeit not perfectly. He also argued that there is no way that the gap could have allowed vermin to enter and find their way into the premises otherwise than by chewing their way through the interior linings, and there is no evidence of that. That is because the way the framing is constructed, with vertical struts and horizontal “dwangs”, means that vermin would encounter solid timbers barring their route. I accept that.
- There is no dispute that vermin did find their way into the roof space during the tenancy. The tenants reported vermin activity to the landlord and there was a disagreement over who would pay for pest control. The parties agreed to split the cost without the landlord accepting responsibility to do so. The problem was noticed, and pest control services attended in May and June 2025
- How the vermin found their way into the roof space is unclear. It is not an unusual occurrence. Possibly they accessed through a gap at the garage door caused by rodents chewing the rubber seal around the door. The landlord replaced the seal when it was brought to their attention. Houses, including modern houses, are not hermetically sealed. There will be access points for vermin to enter. The fact that they do enter does not mean, necessarily, that the premises are defective or that the landlord is responsible.
- I do not accept that the presence of vermin in the roof space affected the tenants’ health or seriously affected their use and enjoyment of the premises. I certainly do not accept that it rendered the premises uninhabitable.
- The tenants argued that the vermin made nests in the insulation in the roof space, and they relied on photographs of the insulation to prove that it was widely contaminated by the nests. They pointed to areas of discoloration of the insulation as evidence of contamination.
- Mr Wilson rejected that. He argued that the nature of the insulation means that there are variations of colour throughout it and the darker areas are simply an incident of that, not contamination.
- I accept the possibility that vermin can contaminate insulation and that could, potentially, pose a health risk. I do not think that I need expert evidence to establish that. I do have some difficulty accepting that contamination of insulation in the ceiling could spread to living areas in the house. Contamination could become airborne, but the roof place is self-contained, and I would need some evidence to show how it could reach other occupied areas of the house and significantly affect them.
- I cannot accept that the discoloration of the insulation represents contamination of the insulation. I accept that there are variations of colour in the type of insulation in the roof space of the house and that could explain the darker patches shown in the photographs. To prove contamination the tenants would need to provide a reliable result of a test of a sample of the insulation. Even with that evidence, there would still need to be a persuasive explanation of how contamination could affect living areas in the house.
- In conclusion, the tenants have not proved that vermin entered the premises due to the landlord’s breach of an obligation, or that the vermin caused contamination of the premises that affected their health or their use and enjoyment of the premises.
- The tenants produced a file containing some of their medical records. I have read that file. That file has not been provided to the landlord for privacy reasons. For the same reasons I do not intend commenting on the records other than to say that I did not find them to be of assistance to the tenants in terms of proving a connection between the condition of the premises and their health problems. Termination
- It follows from my findings that the claim for termination must fail. I note that even if the tenants had established the elements of their claim, it is unlikely that their claim for termination would have succeeded. Section 59 of the Act would not apply, and the Act prescribes a process requiring service of a breach notice and non-compliance with the notice before the Tribunal could consider termination for breach.
- The only other basis for termination in these circumstances would be where the landlord’s conduct amounted to a rejection of the agreement. There is no evidence in this case to support that. Draughts and Mould
- The tenants complained of unreasonable gaps, draughts and mould affecting the premises. I find that those claims have not been proved.
- Photographs may show gaps at doors but that does not prove that there is a draught. Gaps must allow air to pass through for there to be a draught and the tenants’ photographs do not show that.
- The landlord produced a Healthy Homes Report and a report from the house builder following an inspection in July 2025. These reports found no defects or non-compliance.
- The tenants criticised the builder’s report on the ground that it is not an independent report. That is a fair point, although I would expect a reputable house builder to identify and correct a defect if it was apparent. In any case the onus of proof is on the tenants, not the landlords, and the evidence did not prove their case.
- There was some mould in the premises in places but that does not prove a landlord breach. There are other potential causes of mould. The evidence does not prove that mould arose due a landlord’s breach. Electrical
- The tenants claimed that vermin had chewed through wiring in the roof space rendering it unsafe. The landlord called out an electrician who inspected the wiring and declared it safe.
- The tenants criticise that report because that the photographs contradict the finding and because the electrician refers to conducting a “mega” test whereas the test is properly known as a Megger test.
- I do not find that the photographs prove that the wiring was dangerous. There is some damage to the conduit piping but there is no exposed wiring. The mistake in naming the test does not prove that it was not conducted properly, and the tenants have no expert evidence to contradict it. Unlawful Entry
- The tenants claim that the Mr Wilson entered the premises unlawfully after they left. The tenants say that neighbours saw him at the premises. He accepts that he went to the premises but denies entering them.
- The evidence does not establish that there was any unlawful entry. Mr Wilson was entitled to go to the premises and knock on the door. Conclusion
- The tenants have failed to prove any of their claims and so their application must be dismissed. Landlord’s Application
- It follows from my dismissal of the tenants’ claim that the landlord is entitled to be paid rent to the end of the tenancy on 19 August 2025. The tenancy continued until the landlord found a new tenant and the tenants did not pay rent for the last six weeks of the tenancy.
- There was some discussion about the landlord’s rent statement and money that was paid to the previous property manager. After hearing from the parties, I am satisfied that the tenants have been given credit for all their rent payments and that the landlord’s rent statement is correct. I have therefore awarded the rent claimed in full.
- The tenants accepted the landlord’s claim for an abortive plumber’s call-out.
- The other call-out claim is based on the contractor not finding any electrical fault. I find that it was reasonable for the tenant to report her concern about the wiring. Tenants are required to report damage to the premises. Filing Fee
- The landlord has been largely successful and so I have awarded them the filing fee. Suppression
- The tenants have not been successful and so there would need to be a good reason to grant them name suppression. I am not aware of such a reason, and I refuse name suppression.