Published tribunal order
Tenancy Tribunal case 5324239 — Exemplary damages at Unit/Flat 1, 145 Quay Street, Auckland CBD, Auckland
Decided 16 Feb 2026 · Published 16 Feb 2026 · Application 5324239
- Exemplary damages
- Healthy homes
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of [the tenant’s] name and identifying details.
- The claim of [the tenant] is upheld.
- Viaduct City Rentals Limited As Agent For Triknat Investments Ltd must pay the tenant $366.23 for excessive power, $205.85 for the healthy homes report, and $2500 for exemplary damages, a total of $3072.08.
Reasons
- Both parties attended the hearing.
- This was a rehearing of the tenant’s application for damages and exemplary damages for breach of the Healthy Homes Standards on the heating capacity requirement.
- There was also an application brought by the landlord but the landlord has now withdrawn that and advises that the tenancy concluded on 15 February 2026. Burden of proof
- I begin by noting that in regard to the burden of proof, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. They must establish that what they are claiming is more probable than not.
- Independent witnesses, corroborating documents, reports and photographs can be an important part of discharging this burden.
- The parties must collect the relevant evidence they rely on and produce that evidence to the Tribunal at the hearing. It is not for the Tribunal to extract or locate the evidence, or to hunt down and call witnesses itself. The parties decide which witnesses they wish to call in support of their case.
- Ultimately, it is for the party making the application to decide what evidence to put before the Tribunal. As noted in Kaipo v Clarke & McCarthy, in practical terms this means that: 1 ...[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. Relevant background
- The tenancy started on 27 April 2025. The premises are a two bedroom apartment. The living room / lounge open to a kitchen and a hallway leading to the front door. The bedrooms and bathrooms run off the hallway and have doors.
- When the tenant first arrived at the property, he noticed there was no wall heater in the living room. He asked the landlord for the Healthy Homes Report and was given a comprehensive report dated 9 October 2020 which advised that there was no heating source installed and that a 6kW fixed heat pump was required. Attached to the report was a Tenancy Services generated report presumably based on data about the premises inputted by the healthy homes inspector which confirmed that a 6 kW heater was required.
- The tenant asked for a heat pump to be installed after getting this report.
- In mid-July 2025 a heat pump was eventually installed. It was only a 5.2 kW heater.
- The tenant then performed his own calculations and submitted a diagram to the Tribunal. The tenant has completed training and requirements to become a healthy homes inspector and knows how to take the requisite measurements. He 1 Kaipo v Clarke & McCarthy DC Waitakere 233/02, 12 April 2002, at [7]. concluded that the total wall area was just over 40 square metre, which made sense to him, considering the premises including the bathroom and bedrooms was about 70 square meters in total.
- The tenant’s calculation confirmed that a heating source producing 5.6 kW of heating capacity was required.
- The tenant next got in contact with the landlord who eventually decided to remedy the issue by installing a second heater to a heating source of 1kW. The landlord told the tenant the owner had only installed a 5.2 kW heater because he (wrongly) thought he only had to heat 80% of the total area.
- The tenant said that the option of installing a second heater was not open to the landlord because the first heat pump had been installed after 1 July 2019.
- The tenant has now obtained his own healthy homes report from Healthy Homes NZ. It concludes, based on measurements taken by the inspector that the heating standard required is in fact 6.1 kW.
- The landlord says: a. It accepts that from the beginning of the tenancy until the heat pump was installed three months later, it is in breach of the heating standards and should pay exemplary damages to the tenant. b. It has obtained a recent email from the installer of the heat pump in which he concludes that a lower insulation rating is required and therefore that the heating capacity requirement should be 5.2 kw. This email is not in the form of a report and the author was not called to give evidence as to his full reasoning or any measurements he took. c. The landlord submitted a tenancy services generated report which has most but not all of the same information in it as the report attached to the original healthy homes report but concludes that the heating standard is only to 4 kW.
- It was not immediately apparent who had prepared the most recent tenancy services report. There are measurements in it that are not the same as those on the original tenancy services generated report. The landlord submits that the altered insulation affects the heating requirements. Relevant Law
- The tenant claims that the landlord has breached its obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant considers that the landlord has failed to comply with the HHS heating standard.
- Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025.
- The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A). Finding
- I find that the premises was not compliant with the applicable Heating Standard at the outset of the tenancy or throughout. It was required to be.
- The evidence establishes that the heating standard required for the property was at least 6 kW of heating capacity.
- The landlord knew this, but installed a heat pump to a lower standard.
- I consider the tenant’s evidence to have more force and of stronger corroborative value. The tenant has obtained his own independent report which corroborates my finding that the heating started is at least 6 kW.
- The landlord’s only independent evidence is in the form of an email of a witness not called to give evidence or explanation, with a tenancy services generated report which is wholly dependent on whoever has inputted the data. Damages
- I consider the tenant has proven that he had to pay more for power bills during this period due to alternative heating sources. The landlord must pay the tenant $366.23 for the additional power.
- The tenant is also entitled to recovery of the cost of the healthy homes report he obtained, as this evidence helped prove his case. The landlord must pay the tenant $205.85.
- The tenant also claims exemplary damages. He claims $5000.
- The landlord’s failure to comply with the relevant provision of RTA noted above was an unlawful act, for which the maximum amount that can be awarded is $7200.
- 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 section 109(3) Residential Tenancies Act 1986.
- In Auckland City Council v Blundell, the Court of Appeal stated: 2 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 the conduct.
- 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.
- It is established and settled law that the Tribunal must take into account the intent of the party against whom the order for exemplary damages is sought: 3 Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed “intentionally”. In my view negligence does not equate to intention and for the Tribunal to be satisfied that a party has “intentionally” committed an unlawful act, evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind the act and deliberately set about to commit it.
- That there must therefore be evidence of actual intention on the part of the landlord (as opposed to mere negligence) has been accepted in several District Court decisions as being the touchstone. 4
- The landlord is the property manager. It said the owner was asked many times to install a heat pump but the landlord would not do so. The landlord also offered up that the landlord did not get a heat pump installed after he commissioned the 2 Auckland City Council v Blondell [1986] 1 NZLR 732 (CA) at 704 per Cooke P 3 See Chief Executive ex Parte Edmonson v Walls, North Shore Tenancy Tribunal 548/92, 29 June 1993 at [20]. 4 See, for example, AI Property Managers Ltd v Duggan [2021] NZDC 9168 and TMT New Zealand Ltd v Sweeney [2021] NZDC 16182. 2020 report because he thought there already was a heat pump there. That explanation cannot be true. The owner would have inspected the property and seen that a heat pump was not on the chattels list when it bought the property. The 2020 report plainly states there is no heat pump. The landlord must have known from that time. 5
- I cannot accept that the landlord did not act intentionally in failing to comply with the obligations concerning the heating standard.
- It is strongly in the public interest that premises are compliant with Healthy Homes Standards. These standards are well known now by landlords and must be taken seriously.
How much should be awarded?
- An appropriate starting point in this case is roughly one third of the maximum.
- I consider that it would be just to require the landlord to pay the tenants $2,000 by way of exemplary damages.
- I consider that a mitigating factor here is that this appears to be the first time this landlord has been before the tribunal.
- I therefore find that $2500 should be awarded.
- Because [The applicant/s] has succeeded with the claim I must reimburse the filing fee.
- I also consider it appropriate to award him name suppression.
- I note there are further matters the tenant wishes to raise but there will need to be the subject matter of a further application.