What was Tenancy Tribunal case 5316119 about?

The tribunal order states: Jie Kuan Chen & Rong Lin must pay [The tenant/s] $1,752.00 immediately,

How much money was awarded in case 5316119?

Compensation: $400.00 awarded to landlord; Compensation: $227.00 awarded to tenant; Compensation: Compensation for build…: $1,520.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $345.00 awarded to landlord

What type of tenancy dispute was case 5316119?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 5316119?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12623433-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5316119 about?

The tribunal order states: Jie Kuan Chen & Rong Lin must pay [The tenant/s] $1,752.00 immediately,

How much money was awarded in case 5316119?

Compensation: $400.00 awarded to landlord; Compensation: $227.00 awarded to tenant; Compensation: Compensation for build…: $1,520.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $345.00 awarded to landlord

What type of tenancy dispute was case 5316119?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 5316119?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12623433-Tenancy_Tribunal_Order.pdf.

Unit/Flat 88, 124 Taylors Road, Mount Albert, Auckland Tenancy Tribunal Case 5316119 — Exemplary damages

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Unit/Flat 88, 124 Taylors Road, Mount Albert, Auckland Tenancy Tribunal Case 5316119 — Exemplary damages | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5316119 — net $1,752.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet compensation	$400.00		Carpet compensation
Paint repairs	$345.00		Paint repairs
Exemplary damages: HHS statement breach		$250.00	HHS statement breach
Exemplary damages: Unlawful entry		$500.00	Unlawful entry
Compensation: Compensation for building works		$1,520.00	Compensation for building works
Compensation for utilities		$227.00	Compensation for utilities
Total award	$745.00	$2,497.00
Net award		$1,752.00
Total payable by Landlord to Tenant		$1,752.00

Claims and awards for application 5316119 — net $1,752.00 NZD. Verify on MoJ.

Carpet compensation

Amount: $400.00
Awarded to: Landlord
Reason: Carpet compensation

Paint repairs

Amount: $345.00
Awarded to: Landlord
Reason: Paint repairs

Exemplary damages: HHS statement breach

Amount: $250.00
Awarded to: Tenant
Reason: HHS statement breach

Exemplary damages: Unlawful entry

Amount: $500.00
Awarded to: Tenant
Reason: Unlawful entry

Compensation: Compensation for building works

Amount: $1,520.00
Awarded to: Tenant
Reason: Compensation for building works

Dismissed claims

Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Compensation Exemplary damages Property damage

Order

Jie Kuan Chen & Rong Lin must pay [The tenant/s] $1,752.00 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,280.00 (6528234-010) to [The tenant/s] immediately.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlord and tenant. The tenancy has ended.
Both parties appeared at the hearing in Auckland today.

BACKGROUND

The tenancy agreement records the landlords as Jie Kuan Chen and Rong Lin, the co-tenants are Steve Nightingale and Hadley William Nightingale. The landlord has a property manager, NZ Residential and Commercial Realty Limited (Kiwi Realtors), which is represented by Mr Er.
The tenancy was a fixed-term tenancy commencing on 5 April 2024, ending on 5 October 2024. The weekly rental was $760.00.
The premises were a new townhouse, and these tenants were the first occupants in the dwelling.
Unfortunately, there were issues with the building, which required remediation. That included a water leak identified in late May 2024. Significant works were required that took about two weeks, which included uplifting of flooring, concrete cutting, plumbing repairs, and making good the leak.
In November 2024, there was an agreement between the parties to reduce the rent from $760, to $700 per week.
The tenancy came to an end following notice from the tenants.

LANDLORDS CLAIMS

At the hearing, the Mr Er confirmed the landlord’s claims are as follows: a. Carpet damage b. Water rates c. Painting cost d. Rent arrears

TENANTS CLAIMS

At the hearing, Mr Nightingale confirmed their claims are as follows: a. Exemplary damages for breach of the Healthy Homes Standards b. Exemplary damages for unlawful entry c. Compensation for the inability to use the tenancy. d. Reimbursement of power.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
It is the applicant that must prove their case. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, 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. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

ANALYSIS

The Tribunal must consider claims for both parties, and will do so in turn.

LANDLORDS CLAIMS

Claim 1- Carpet replacement

The landlord states that the premises were a new townhouse at the start of the tenancy, but when the premises were returned, there was a stain on the carpet in one room. The landlord states that the stain could not be removed from the commercial cleaning undertaken by the tenants, so the carpet needs to be replaced. In particular, in order to have matching carpet, two rooms need carpet replacement.
The landlord has presented a quotation from Carpet Court for $1,381.68 which is the cost for the replacement in one room, but the claim is for twice that, as it would be for two rooms.
The landlord does not know what the insurance excess for the premises is.
In response, the tenant does not dispute that the stain was on the carpet at the end of the tenancy, but he is not sure what caused it. The tenant submits that the landlord’s claim is excessive.
The tenant notes that the premises have been re-let within 8 days of them moving out. Analysis
With any compensation claim, to receive an order the party must incur a loss. In short, the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must first prove the damage is more than fair wear and tear, and that it occurred during the tenancy. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for.
In this case, I am satisfied that the evidence supports a conclusion that the damage occurred during the tenancy. Taking into consideration the photograph, I am not persuaded that the damage would be classed as fair wear and tear.
The onus then shifts to the tenants to prove that the damage was not careless or intentional damage.
Starting with intentional damage, I am certain that the tenants did not intentionally cause the stain on the carpet.
The question then is whether the stain was caused carelessly, and I find the tenants have not proven that the stain was not caused carelessly during their tenancy. To that extent, the tenants would be liable for the remediation to the extent of the insurance excess, or four weeks rent, whichever is the lower.
In this case, the landlord has claimed $2,763.38, to replace the carpet in two rooms. I agree with the tenant, that the claim seems excessive, given the area of staining. I am also minded that the landlord has not incurred that cost, all that has been provided as a quotation. The property has been re- tenanted, and there is no evidence before the Tribunal to show that the new tenants have paid less rental, because of the carpet stain. I would doubt that would be the case.
Given that the landlord has not incurred the cost, I consider that a fair approach to take would be to make an award of compensation, for a loss of value of the carpet. Again the stain is reasonably modest, and I consider that the loss of value that would be fair, would be $400. I take into consideration that the carpet is near new.
While the landlord is not aware of what the excess is, and it has not been recorded in the tenancy agreement, I doubt very much it would be less than the $400 figure. Claim 2 – Water rates
At the hearing at the landlord requested an order for water rates. However, the landlord was not able to advise what the water rates figure was, nor did he have the water rates information available. I note further that there was no claim for water rates in the original application form, nor can I see an application to amend the application to include water rates.
The tenant confirmed that he has no issue paying the water charges once the charge information is provided to him. It was agreed that the landlord will provide the water information to the tenant, but ultimately, if there is any future dispute in relation to the water rates, then the landlord can file a new claim with the Tribunal. Claim 3 – Paint damage
The landlord seeks compensation of $345.00 for paint touch-ups. At the hearing, the landlord showed me three photographs on his phone, showing areas of damage to the walls.
The tenant’s position is that there has been considerable movement in the house, such as when the floor was taken up. The tenant does not know who caused the damage, and because of that the tenant disputes liability for this claim. Analysis
Again, the obligation is on the landlord to prove that the damage occurred during the tenancy and that it was not fair wear and tear. I am satisfied the landlord has proven that. The property was new at the start of the tenancy, it is very likely that the damage occurred during the tenancy period. Given the extent of the damage, I am not persuaded that it would meet the definition of fair wear and tear, the marks are of significance.
The tenant must now prove that the damage was not careless or intentional damage.
I am sure the damage was not intentional.
The evidence presented falls short of discounting careless damage on the part of the tenants. I accept there were other tradespeople in the property over the course of time, but I have seen no evidence, such as emails, where the tenants have raised damage to the walls with the landlord at the time.
Finding as I do that this is careless damage, likely to have been caused by the tenants or somebody on the premises with their consent, I find the tenants must be liable for the repair cost. The amount claimed seems reasonable, and that has ordered in full. Claim 4 – Rent reduction
The evidence is that the tenants reduced the rent payments from $760 to $700, in November 2024.
The evidence is further that there was an agreement between the parties for that to occur. However, the landlord’s view is that the reduction was on the basis of the tenant staying longer in the property, for a year. That agreement was verbal. The landlord now seeks to recover the additional $60 per week, until the tenancy end date.
The tenant states that they paid the rent as and when it fell due. When the rent was reduced, that followed an agreement with Mr Nightingale’s wife Analysis
The rental at the start of the tenancy was $760. That was reduced by agreement between the parties to $700, but no updated tenancy agreement was entered into.
I am not persuaded that the parties agreed to another fixed-term tenancy agreement, which is not recorded in any of the email records, nor was another tenancy agreement completed, recording that.
I am not entirely certain the basis for the parties agreeing to the rent reduction; there is some indication in emails that it related to the problems around the building and inconvenience, but I cannot be sure on the information available.
But there is insufficient evidence to show that the agreement to reduce the rental by $60, was on the basis that there was a new fixed term tenancy, so I cannot see any ground upon which I could order the tenants now pay that further amount. This claim has not been established, so it must be dismissed.

TENANTS CLAIMS

I will now consider the four claims the tenant has advanced. Claim 1 – Healthy Homes Standards
The tenant’s position is that when they moved in, there was no Healthy Homes Compliance statement provided, nor HHS inspection report. The tenancy agreement just states that it was a new build.
The tenant also states that the bathroom did not have an extraction fan.
In response, the landlord states that the premises are Healthy Homes Standards compliant. At the hearing, the landlord showed me a copy of the report that was obtained (I accept) just before this tenancy commenced. Analysis
There are two claimed breaches, that is a breach of the landlord’s obligations in relation to the tenancy agreement setting out a Healthy Homes Statement, and secondly, an actual breach of the Healthy Homes Standard on the basis that there was no extractor fan in the bathroom. Healthy Homes Statements
Section 13A of the Residential Tenancies Act 1986 sets out the requirements for tenancy agreements. Subsection (1CA) holds that: The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
Section 13A(1F) confirms that an unlawful act arises if a landlord fails to comply with section 13A(1CA).
The tenancy agreement in this case complies with subsection (a), but it does not comply with subsection (b).
To comply with subsection (b), the landlord needed to include in the tenancy agreement the information set out in part 3 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019. That sets out specific information in relation to heating, insulation, ventilation, draught stopping and moisture ingress and drainage. The information is reasonably extensive, but that information is missing from the tenancy agreement entirely.
The landlord has accordingly breached the obligations under section 13 A, which means that an unlawful act arises, for which exemplary damages could be ordered.
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.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: 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. 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 section 13(1CA) is $750.00.
Taking the section 109 factors into account, I have no reason to consider that the decisions made by the landlord, represented by a professional property manager, were not intentionally made. The effect of the unlawful act was to withhold important information on the tenancy from the tenants. As will be discussed shortly, as an example, the tenants were uncertain as to the situation with the bathroom extraction fan, which meant that a claim was brought against the landlord in the tribunal. There are strong interests for tenants and the public generally, for tenants to live in healthy environments, and providing information regarding the Healthy Homes Standards is one of the ways that is achieved. I consider it would be just to make an order in this case.
Again, the maximum level of exemplary damages is $750. In this case I consider an order at 1/ 3 of the maximum would be reasonable, and therefore order exemplary damages to be paid of $250. Bathroom extraction fan
The tenant has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards, as there was no extractor fan in the bathroom.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
The ventilation standard sets out minimum expectations around windows and doors, and in particular, the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
At the hearing the landlord produced a copy of an inspection report, which does confirm that the bathroom has an extraction fan. I accept that the tenant could not hear the fan operate, but that is not to say that there was not a compliant fan in place.
On the evidence available, I find that there was likely to be a compliant bathroom extractor fan, to that extent there is no breach of the HHS. Claim 2 - Unlawful entry
The tenant states that there was an unlawful entry into the tenancy, by an agent for the landlord taking photographs, so that the premises could be re- let. That occurred after the tenants had advised that an inspection could not take place as requested.
In response, the landlord states that the person who went into the tenancy on 24 December 2024 was another agent. The landlord states that the tenancy was empty, as the tenants had moved out.
Mr Er confirmed that he was aware that a 48-hours notice was needed for entry. Analysis
As I indicated to the parties at the hearing today, broadly there are only three ways that a landlord can fully enter the tenancy premises, that is: a. Any time, and without notice, if there is an emergency. b. Any time with the consent freely given by the tenant prior to the entry; and c. Providing the minimum statutory notice for entry is given or with any other statutory authority.
In this case, if the landlord wanted to enter the premises to take photographs for the re-advertising of the premises, the statutory notice criteria would be that found in section 48(3): (3) With the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purpose of showing the premises— (a) to prospective tenants; or (b) to prospective purchasers; or (c) to a registered valuer engaged in the preparation of a report on the premises; or (d) to a real estate agent engaged in appraising, evaluating, or selling or otherwise disposing of the premises; or (e) to an expert engaged in appraising or evaluating the premises; or (f) to a person who is authorised to inspect the premises under any enactment.
Subsection 4 confirms that failure to comply with various subsections including subsection three, is an unlawful act, meaning exemplary damages could be ordered.
Accordingly then, for the landlord or agent to enter the premises to take photographs for marketing purposes, that could only be done if the tenants consented to that entry.
In this case, on the evening of 23 December 2024, the Property Manager sent a text message to the tenant: Hi Hadley can we come over to take photos for the townhouse tomorrow
The tenant responded that same day: Hi Mike, tomorrow won’t work as we are still moving and won’t be done until tomorrow afternoon. We will then need to do some cleaning.
The property manager responded, “Okay”.
However, the tenant stated that the following day they found an agent of the landlords in the premises with a camera to take photographs. On 24 December 2024, the tenant messaged the Property Manager: Hi Mike, we have just have your assistant come to take a video of our house to show people. I told you yesterday that today wouldn’t work. You need to give at least 48 hrs notice to enter the property no just as you please.
It is plain from that exchange, that the landlord asked for permission to come to the property the following day to take photographs, and that was declined. The tenants explained why they did not consent, which was because they were still moving out of the property and undertaking cleaning.
Ultimately, the evidence is that despite the tenant’s withholding consent, the landlord’s agent entered the premises anyway, and that is an unlawful entry.
The landlord submitted that the tenants were in the process of moving out, and the Tenancy was empty. That might well be the case, but the fact is that the tenants continued to have possession of the premises, they were paying rent for it, and therefore they have all of the protections available to them within the RTA.
Taking into consideration the section 109 factors, I consider that it is likely the entry was undertaken intentionally. The landlord was plainly made aware that consent had not been given to enter the premises. Whether it was the property manager or some other agent for the landlord, does not change the fact that the landlord, by way of the property manager, had been put on notice that consent was withheld. The effect for these tenants was that they had somebody in the premises without proper authority. There are very strong interests for tenants and the public generally, that tenancies are not entered into other than with proper authority. In the circumstances, I consider it would be just to make an order of exemplary damages.
The maximum level of exemplary damages for a breach of section 48, is $1,500. Again I consider an order at 1/3 of the maximum would be appropriate, and I therefore order exemplary damages of $500 to be paid by the landlord to the tenants. Claim 3 – Inability to use the tenancy
The tenants seek compensation for being unable to use the Tenancy because of the repairs that the landlord needed to undertake.
The tenant described the loss of amenity that arose with the Tenancy over a two-week period. That included a water leak with wastewater, the floor being lifted in the lower level, being unable to use any of the bathrooms or other plumbing facilities using the waste, concrete cutting inside the house, dust, tradespeople coming into the premises to do the work, etc.
The tenant’s position is that they were paying a high rate of rent, and could have expected not to have any impact on their enjoyment of the premises, to the extent that occurred.
The tenants further say that when issues were raised, they were told to speak with the developer and get compensation from them.
The landlord states that they were open to repaying for hotel expenses, but no invoice for this work was provided. The landlord states that a receipt was needed. Analysis
There is no dispute between the parties that there was a plumbing leak, and that significant work was required in order to repair that leak.
I agree with the approach taken by the tenants, that they were paying rent to the landlord for premises that provided quite enjoyment, and simply put, they did not receive that.
It is generally accepted that residential dwellings will need maintenance and repairs from time to time, that would be inevitable. Ordinarily if the impact on the tenants was modest, there would be no expectation that compensation would be provided. The question would always be fact specific. In this case however, I consider that the impact on the tenants was very significant. It would have been difficult if not impossible to live in the premises over the course of the works, again noting that there was no sanitary plumbing available in the house for a period of time. I am certain that there would have been a significant degree of disruption and inconvenience to the tenants, and ultimately, they were not getting what they were paying rent to receive.
The landlord submits that the tenants were not living in the property while the work was going on, because they had another property they could live in. Mr Nightingale confirmed it was the case, but that is not a defence for the landlord. It makes no difference whether the tenants were living in the property or not living in it; they were paying rent for premises that needed to have particular characteristics, such as not being a building site, with working plumbing, and they were not receiving it.
It is fair that compensation be provided; the question becomes what the level of that compensation should be. The tenants have claimed two weeks of rent, and I consider that is reasonable. Again for a period of time the premises were not livable, but I also considered that it is very likely that the tenants undertook work that arose as a consequence of the repairs, such as cleaning dust from surfaces and items, which should be compensated.
The tenants provided written statements setting out their experiences, and that includes, for example: One of the most serious issues was the ongoing disruption caused by repairs, tradespeople, and repeated entries—often without notice. For the first three months, we never knew what we were going to come home to, or who might be in the house. The property manager, tradespeople, and the developer’s building manager would show up or let themselves in without warning. This left us feeling like we had no privacy or security. We work from home and were constantly interrupted—something that directly affected our mental wellbeing and ability to work. At one point, we returned to find a commercial dehumidifier running in our spare room due to a leak in the upstairs hot water cylinder—no one had told us this would be happening. Later, when a major leak under the concrete floor occurred, we had to endure loud, dusty construction in our living area for days. We were even asked to liaise with the developer and coordinate the works ourselves. Eventually, we had to leave the property because it was no longer livable. The developer offered a hotel, but we couldn’t take it as we have a dog, and no other options were provided by the property manager. Despite all of this, we were promised two weeks of rent credit and reimbursement for power—neither of which were honoured. Instead, the property manager has repeatedly tried to shift blame to the developer, despite our tenancy agreement being with them, not the developer. This forced us into a position of having to do their job and chase third parties for what we were owed.
Ultimately, I consider that reimbursement of two weeks of rent seems fair, and that is ordered. Claim 4 – Power Use
The tenants seek compensation for the dehumidifier power that was used at the premises, by contactors. The tenant seeks compensation for the use of their power and water used by the contractors.
The tenant seeks compensation for the power bill from 28 March to 28 April 2024, which was $227.00. The tenants state that their normal power bill would be around the $100.00 mark.
The Property Manager agrees that the landlord should pay for power, but disputes that it should be the full charge. The landlord agrees to pay, but only for the consumption of the contractors.
The tenant states that no meter readings were taken at the time because they did not anticipate having this dispute at the end of the tenancy. Analysis
The contractors were in the premises for up to 2 weeks. I accept not all of that time, but I also consider that it is likely that they consumed a reasonable proportion of the utilities over that time.
It would not be surprising to see that no meter readings were taken daily to be able to accurately quantify the utilities used by tradespeople, in this case, the tenants have approached the matter, seeking to have one of the power bills paid by way of compensation for all utilities used, that is power and water. That does not seem unreasonable and would represent a fair outcome, so that is ordered.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5316119 — net $1,752.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet compensation	$400.00		Carpet compensation
Paint repairs	$345.00		Paint repairs
Exemplary damages: HHS statement breach		$250.00	HHS statement breach
Exemplary damages: Unlawful entry		$500.00	Unlawful entry
Compensation: Compensation for building works		$1,520.00	Compensation for building works
Compensation for utilities		$227.00	Compensation for utilities
Total award	$745.00	$2,497.00
Net award		$1,752.00
Total payable by Landlord to Tenant		$1,752.00

Claims and awards for application 5316119 — net $1,752.00 NZD. Verify on MoJ.

Carpet compensation

Amount: $400.00
Awarded to: Landlord
Reason: Carpet compensation

Paint repairs

Amount: $345.00
Awarded to: Landlord
Reason: Paint repairs

Exemplary damages: HHS statement breach

Amount: $250.00
Awarded to: Tenant
Reason: HHS statement breach

Exemplary damages: Unlawful entry

Amount: $500.00
Awarded to: Tenant
Reason: Unlawful entry

Compensation: Compensation for building works

Amount: $1,520.00
Awarded to: Tenant
Reason: Compensation for building works

Dismissed claims

Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Compensation Exemplary damages Property damage

Order

Jie Kuan Chen & Rong Lin must pay [The tenant/s] $1,752.00 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,280.00 (6528234-010) to [The tenant/s] immediately.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlord and tenant. The tenancy has ended.
Both parties appeared at the hearing in Auckland today.

BACKGROUND

The tenancy agreement records the landlords as Jie Kuan Chen and Rong Lin, the co-tenants are Steve Nightingale and Hadley William Nightingale. The landlord has a property manager, NZ Residential and Commercial Realty Limited (Kiwi Realtors), which is represented by Mr Er.
The tenancy was a fixed-term tenancy commencing on 5 April 2024, ending on 5 October 2024. The weekly rental was $760.00.
The premises were a new townhouse, and these tenants were the first occupants in the dwelling.
Unfortunately, there were issues with the building, which required remediation. That included a water leak identified in late May 2024. Significant works were required that took about two weeks, which included uplifting of flooring, concrete cutting, plumbing repairs, and making good the leak.
In November 2024, there was an agreement between the parties to reduce the rent from $760, to $700 per week.
The tenancy came to an end following notice from the tenants.

LANDLORDS CLAIMS

At the hearing, the Mr Er confirmed the landlord’s claims are as follows: a. Carpet damage b. Water rates c. Painting cost d. Rent arrears

TENANTS CLAIMS

At the hearing, Mr Nightingale confirmed their claims are as follows: a. Exemplary damages for breach of the Healthy Homes Standards b. Exemplary damages for unlawful entry c. Compensation for the inability to use the tenancy. d. Reimbursement of power.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
It is the applicant that must prove their case. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, 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. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

ANALYSIS

The Tribunal must consider claims for both parties, and will do so in turn.

LANDLORDS CLAIMS

Claim 1- Carpet replacement

The landlord states that the premises were a new townhouse at the start of the tenancy, but when the premises were returned, there was a stain on the carpet in one room. The landlord states that the stain could not be removed from the commercial cleaning undertaken by the tenants, so the carpet needs to be replaced. In particular, in order to have matching carpet, two rooms need carpet replacement.
The landlord has presented a quotation from Carpet Court for $1,381.68 which is the cost for the replacement in one room, but the claim is for twice that, as it would be for two rooms.
The landlord does not know what the insurance excess for the premises is.
In response, the tenant does not dispute that the stain was on the carpet at the end of the tenancy, but he is not sure what caused it. The tenant submits that the landlord’s claim is excessive.
The tenant notes that the premises have been re-let within 8 days of them moving out. Analysis
With any compensation claim, to receive an order the party must incur a loss. In short, the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must first prove the damage is more than fair wear and tear, and that it occurred during the tenancy. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for.
In this case, I am satisfied that the evidence supports a conclusion that the damage occurred during the tenancy. Taking into consideration the photograph, I am not persuaded that the damage would be classed as fair wear and tear.
The onus then shifts to the tenants to prove that the damage was not careless or intentional damage.
Starting with intentional damage, I am certain that the tenants did not intentionally cause the stain on the carpet.
The question then is whether the stain was caused carelessly, and I find the tenants have not proven that the stain was not caused carelessly during their tenancy. To that extent, the tenants would be liable for the remediation to the extent of the insurance excess, or four weeks rent, whichever is the lower.
In this case, the landlord has claimed $2,763.38, to replace the carpet in two rooms. I agree with the tenant, that the claim seems excessive, given the area of staining. I am also minded that the landlord has not incurred that cost, all that has been provided as a quotation. The property has been re- tenanted, and there is no evidence before the Tribunal to show that the new tenants have paid less rental, because of the carpet stain. I would doubt that would be the case.
Given that the landlord has not incurred the cost, I consider that a fair approach to take would be to make an award of compensation, for a loss of value of the carpet. Again the stain is reasonably modest, and I consider that the loss of value that would be fair, would be $400. I take into consideration that the carpet is near new.
While the landlord is not aware of what the excess is, and it has not been recorded in the tenancy agreement, I doubt very much it would be less than the $400 figure. Claim 2 – Water rates
At the hearing at the landlord requested an order for water rates. However, the landlord was not able to advise what the water rates figure was, nor did he have the water rates information available. I note further that there was no claim for water rates in the original application form, nor can I see an application to amend the application to include water rates.
The tenant confirmed that he has no issue paying the water charges once the charge information is provided to him. It was agreed that the landlord will provide the water information to the tenant, but ultimately, if there is any future dispute in relation to the water rates, then the landlord can file a new claim with the Tribunal. Claim 3 – Paint damage
The landlord seeks compensation of $345.00 for paint touch-ups. At the hearing, the landlord showed me three photographs on his phone, showing areas of damage to the walls.
The tenant’s position is that there has been considerable movement in the house, such as when the floor was taken up. The tenant does not know who caused the damage, and because of that the tenant disputes liability for this claim. Analysis
Again, the obligation is on the landlord to prove that the damage occurred during the tenancy and that it was not fair wear and tear. I am satisfied the landlord has proven that. The property was new at the start of the tenancy, it is very likely that the damage occurred during the tenancy period. Given the extent of the damage, I am not persuaded that it would meet the definition of fair wear and tear, the marks are of significance.
The tenant must now prove that the damage was not careless or intentional damage.
I am sure the damage was not intentional.
The evidence presented falls short of discounting careless damage on the part of the tenants. I accept there were other tradespeople in the property over the course of time, but I have seen no evidence, such as emails, where the tenants have raised damage to the walls with the landlord at the time.
Finding as I do that this is careless damage, likely to have been caused by the tenants or somebody on the premises with their consent, I find the tenants must be liable for the repair cost. The amount claimed seems reasonable, and that has ordered in full. Claim 4 – Rent reduction
The evidence is that the tenants reduced the rent payments from $760 to $700, in November 2024.
The evidence is further that there was an agreement between the parties for that to occur. However, the landlord’s view is that the reduction was on the basis of the tenant staying longer in the property, for a year. That agreement was verbal. The landlord now seeks to recover the additional $60 per week, until the tenancy end date.
The tenant states that they paid the rent as and when it fell due. When the rent was reduced, that followed an agreement with Mr Nightingale’s wife Analysis
The rental at the start of the tenancy was $760. That was reduced by agreement between the parties to $700, but no updated tenancy agreement was entered into.
I am not persuaded that the parties agreed to another fixed-term tenancy agreement, which is not recorded in any of the email records, nor was another tenancy agreement completed, recording that.
I am not entirely certain the basis for the parties agreeing to the rent reduction; there is some indication in emails that it related to the problems around the building and inconvenience, but I cannot be sure on the information available.
But there is insufficient evidence to show that the agreement to reduce the rental by $60, was on the basis that there was a new fixed term tenancy, so I cannot see any ground upon which I could order the tenants now pay that further amount. This claim has not been established, so it must be dismissed.

TENANTS CLAIMS

I will now consider the four claims the tenant has advanced. Claim 1 – Healthy Homes Standards
The tenant’s position is that when they moved in, there was no Healthy Homes Compliance statement provided, nor HHS inspection report. The tenancy agreement just states that it was a new build.
The tenant also states that the bathroom did not have an extraction fan.
In response, the landlord states that the premises are Healthy Homes Standards compliant. At the hearing, the landlord showed me a copy of the report that was obtained (I accept) just before this tenancy commenced. Analysis
There are two claimed breaches, that is a breach of the landlord’s obligations in relation to the tenancy agreement setting out a Healthy Homes Statement, and secondly, an actual breach of the Healthy Homes Standard on the basis that there was no extractor fan in the bathroom. Healthy Homes Statements
Section 13A of the Residential Tenancies Act 1986 sets out the requirements for tenancy agreements. Subsection (1CA) holds that: The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
Section 13A(1F) confirms that an unlawful act arises if a landlord fails to comply with section 13A(1CA).
The tenancy agreement in this case complies with subsection (a), but it does not comply with subsection (b).
To comply with subsection (b), the landlord needed to include in the tenancy agreement the information set out in part 3 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019. That sets out specific information in relation to heating, insulation, ventilation, draught stopping and moisture ingress and drainage. The information is reasonably extensive, but that information is missing from the tenancy agreement entirely.
The landlord has accordingly breached the obligations under section 13 A, which means that an unlawful act arises, for which exemplary damages could be ordered.
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.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: 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. 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 section 13(1CA) is $750.00.
Taking the section 109 factors into account, I have no reason to consider that the decisions made by the landlord, represented by a professional property manager, were not intentionally made. The effect of the unlawful act was to withhold important information on the tenancy from the tenants. As will be discussed shortly, as an example, the tenants were uncertain as to the situation with the bathroom extraction fan, which meant that a claim was brought against the landlord in the tribunal. There are strong interests for tenants and the public generally, for tenants to live in healthy environments, and providing information regarding the Healthy Homes Standards is one of the ways that is achieved. I consider it would be just to make an order in this case.
Again, the maximum level of exemplary damages is $750. In this case I consider an order at 1/ 3 of the maximum would be reasonable, and therefore order exemplary damages to be paid of $250. Bathroom extraction fan
The tenant has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards, as there was no extractor fan in the bathroom.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
The ventilation standard sets out minimum expectations around windows and doors, and in particular, the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
At the hearing the landlord produced a copy of an inspection report, which does confirm that the bathroom has an extraction fan. I accept that the tenant could not hear the fan operate, but that is not to say that there was not a compliant fan in place.
On the evidence available, I find that there was likely to be a compliant bathroom extractor fan, to that extent there is no breach of the HHS. Claim 2 - Unlawful entry
The tenant states that there was an unlawful entry into the tenancy, by an agent for the landlord taking photographs, so that the premises could be re- let. That occurred after the tenants had advised that an inspection could not take place as requested.
In response, the landlord states that the person who went into the tenancy on 24 December 2024 was another agent. The landlord states that the tenancy was empty, as the tenants had moved out.
Mr Er confirmed that he was aware that a 48-hours notice was needed for entry. Analysis
As I indicated to the parties at the hearing today, broadly there are only three ways that a landlord can fully enter the tenancy premises, that is: a. Any time, and without notice, if there is an emergency. b. Any time with the consent freely given by the tenant prior to the entry; and c. Providing the minimum statutory notice for entry is given or with any other statutory authority.
In this case, if the landlord wanted to enter the premises to take photographs for the re-advertising of the premises, the statutory notice criteria would be that found in section 48(3): (3) With the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purpose of showing the premises— (a) to prospective tenants; or (b) to prospective purchasers; or (c) to a registered valuer engaged in the preparation of a report on the premises; or (d) to a real estate agent engaged in appraising, evaluating, or selling or otherwise disposing of the premises; or (e) to an expert engaged in appraising or evaluating the premises; or (f) to a person who is authorised to inspect the premises under any enactment.
Subsection 4 confirms that failure to comply with various subsections including subsection three, is an unlawful act, meaning exemplary damages could be ordered.
Accordingly then, for the landlord or agent to enter the premises to take photographs for marketing purposes, that could only be done if the tenants consented to that entry.
In this case, on the evening of 23 December 2024, the Property Manager sent a text message to the tenant: Hi Hadley can we come over to take photos for the townhouse tomorrow
The tenant responded that same day: Hi Mike, tomorrow won’t work as we are still moving and won’t be done until tomorrow afternoon. We will then need to do some cleaning.
The property manager responded, “Okay”.
However, the tenant stated that the following day they found an agent of the landlords in the premises with a camera to take photographs. On 24 December 2024, the tenant messaged the Property Manager: Hi Mike, we have just have your assistant come to take a video of our house to show people. I told you yesterday that today wouldn’t work. You need to give at least 48 hrs notice to enter the property no just as you please.
It is plain from that exchange, that the landlord asked for permission to come to the property the following day to take photographs, and that was declined. The tenants explained why they did not consent, which was because they were still moving out of the property and undertaking cleaning.
Ultimately, the evidence is that despite the tenant’s withholding consent, the landlord’s agent entered the premises anyway, and that is an unlawful entry.
The landlord submitted that the tenants were in the process of moving out, and the Tenancy was empty. That might well be the case, but the fact is that the tenants continued to have possession of the premises, they were paying rent for it, and therefore they have all of the protections available to them within the RTA.
Taking into consideration the section 109 factors, I consider that it is likely the entry was undertaken intentionally. The landlord was plainly made aware that consent had not been given to enter the premises. Whether it was the property manager or some other agent for the landlord, does not change the fact that the landlord, by way of the property manager, had been put on notice that consent was withheld. The effect for these tenants was that they had somebody in the premises without proper authority. There are very strong interests for tenants and the public generally, that tenancies are not entered into other than with proper authority. In the circumstances, I consider it would be just to make an order of exemplary damages.
The maximum level of exemplary damages for a breach of section 48, is $1,500. Again I consider an order at 1/3 of the maximum would be appropriate, and I therefore order exemplary damages of $500 to be paid by the landlord to the tenants. Claim 3 – Inability to use the tenancy
The tenants seek compensation for being unable to use the Tenancy because of the repairs that the landlord needed to undertake.
The tenant described the loss of amenity that arose with the Tenancy over a two-week period. That included a water leak with wastewater, the floor being lifted in the lower level, being unable to use any of the bathrooms or other plumbing facilities using the waste, concrete cutting inside the house, dust, tradespeople coming into the premises to do the work, etc.
The tenant’s position is that they were paying a high rate of rent, and could have expected not to have any impact on their enjoyment of the premises, to the extent that occurred.
The tenants further say that when issues were raised, they were told to speak with the developer and get compensation from them.
The landlord states that they were open to repaying for hotel expenses, but no invoice for this work was provided. The landlord states that a receipt was needed. Analysis
There is no dispute between the parties that there was a plumbing leak, and that significant work was required in order to repair that leak.
I agree with the approach taken by the tenants, that they were paying rent to the landlord for premises that provided quite enjoyment, and simply put, they did not receive that.
It is generally accepted that residential dwellings will need maintenance and repairs from time to time, that would be inevitable. Ordinarily if the impact on the tenants was modest, there would be no expectation that compensation would be provided. The question would always be fact specific. In this case however, I consider that the impact on the tenants was very significant. It would have been difficult if not impossible to live in the premises over the course of the works, again noting that there was no sanitary plumbing available in the house for a period of time. I am certain that there would have been a significant degree of disruption and inconvenience to the tenants, and ultimately, they were not getting what they were paying rent to receive.
The landlord submits that the tenants were not living in the property while the work was going on, because they had another property they could live in. Mr Nightingale confirmed it was the case, but that is not a defence for the landlord. It makes no difference whether the tenants were living in the property or not living in it; they were paying rent for premises that needed to have particular characteristics, such as not being a building site, with working plumbing, and they were not receiving it.
It is fair that compensation be provided; the question becomes what the level of that compensation should be. The tenants have claimed two weeks of rent, and I consider that is reasonable. Again for a period of time the premises were not livable, but I also considered that it is very likely that the tenants undertook work that arose as a consequence of the repairs, such as cleaning dust from surfaces and items, which should be compensated.
The tenants provided written statements setting out their experiences, and that includes, for example: One of the most serious issues was the ongoing disruption caused by repairs, tradespeople, and repeated entries—often without notice. For the first three months, we never knew what we were going to come home to, or who might be in the house. The property manager, tradespeople, and the developer’s building manager would show up or let themselves in without warning. This left us feeling like we had no privacy or security. We work from home and were constantly interrupted—something that directly affected our mental wellbeing and ability to work. At one point, we returned to find a commercial dehumidifier running in our spare room due to a leak in the upstairs hot water cylinder—no one had told us this would be happening. Later, when a major leak under the concrete floor occurred, we had to endure loud, dusty construction in our living area for days. We were even asked to liaise with the developer and coordinate the works ourselves. Eventually, we had to leave the property because it was no longer livable. The developer offered a hotel, but we couldn’t take it as we have a dog, and no other options were provided by the property manager. Despite all of this, we were promised two weeks of rent credit and reimbursement for power—neither of which were honoured. Instead, the property manager has repeatedly tried to shift blame to the developer, despite our tenancy agreement being with them, not the developer. This forced us into a position of having to do their job and chase third parties for what we were owed.
Ultimately, I consider that reimbursement of two weeks of rent seems fair, and that is ordered. Claim 4 – Power Use
The tenants seek compensation for the dehumidifier power that was used at the premises, by contactors. The tenant seeks compensation for the use of their power and water used by the contractors.
The tenant seeks compensation for the power bill from 28 March to 28 April 2024, which was $227.00. The tenants state that their normal power bill would be around the $100.00 mark.
The Property Manager agrees that the landlord should pay for power, but disputes that it should be the full charge. The landlord agrees to pay, but only for the consumption of the contractors.
The tenant states that no meter readings were taken at the time because they did not anticipate having this dispute at the end of the tenancy. Analysis
The contractors were in the premises for up to 2 weeks. I accept not all of that time, but I also consider that it is likely that they consumed a reasonable proportion of the utilities over that time.
It would not be surprising to see that no meter readings were taken daily to be able to accurately quantify the utilities used by tradespeople, in this case, the tenants have approached the matter, seeking to have one of the power bills paid by way of compensation for all utilities used, that is power and water. That does not seem unreasonable and would represent a fair outcome, so that is ordered.

Tenancy Tribunal case 5316119 — Exemplary damages at Unit/Flat 88, 124 Taylors Road, Mount Albert, Auckland

At a glance

Tenancy Tribunal case 5316119 — Exemplary damages at Unit/Flat 88, 124 Taylors Road, Mount Albert, Auckland

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

LANDLORDS CLAIMS

TENANTS CLAIMS

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

LANDLORDS CLAIMS

TENANTS CLAIMS

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions