What was Tenancy Tribunal case 5328741 about?

The tribunal order states: An application for suppression has been made in this case and the Tribunal

How much money was awarded in case 5328741?

Compensation: Toilet: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5328741?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5328741?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12861847-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5328741 about?

The tribunal order states: An application for suppression has been made in this case and the Tribunal

How much money was awarded in case 5328741?

Compensation: Toilet: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5328741?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5328741?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12861847-Tribunal_Order_Redacted.pdf.

Unit/Flat Flat 1, 18 Sinclair Street, Ebdentown, Upper Hutt Tenancy Tribunal Case 5328741 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5328741 — net $1,028.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: unlawful entry	$500.00	unlawful entry
Compensation: toilet	$500.00	toilet
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$1,028.00
Total payable by Landlord to Tenant	$1,028.00

Claims and awards in Tenancy Tribunal application 5328741 — net $1,028.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: unlawful entry	$500.00	unlawful entry
Compensation: toilet	$500.00	toilet
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$1,028.00
Total payable by Landlord to Tenant	$1,028.00

Order

An application for suppression has been made in this case and the Tribunal orders suppression of the tenant’s name and identifying details.
Rentcare Property Management Limited must pay [The tenant/s] $1,028.00 immediately. DescriptionTenant Exemplary damages: unlawful entry $500.00 Compensation: toilet $500.00 Filing fee reimbursement $28.00 Total award $1,028.00 Total payable by Landlord to Tenant $1,028.00

Reasons

Both parties attended the hearing by video and telephone.
The tenant’s application was for compensation and exemplary damages for: a. The landlord’s unlawful entry into the property. See section 48 Residential Tenancies Act 1986 (“RTA”). b. The landlord’s failure to maintain the property by repairing an issue with a toilet. See section 45(1)(b) RTA.
When this decision refers to the landlord, it refers to the property management company and its property manager. It refers to the owner where he was specifically responsible for any action or inaction.
The tenancy agreement records the landlord as “RentCare Property Management Limited on behalf of RentCare Property Management Limited”. No owner or principal is named. The company is therefore primarily liable to the tenant. Liability between the owner and the company will be determined by the agency agreement between themselves. Standard of proof and evidence
In considering the claims, the standard of proof is on the balance of probabilities. In other words, the tenant must establish with evidence that their claim is more likely than not. Each of the claims has been considered bearing in mind the standard of proof required.
The Tribunal does not need to be completely certain, but it needs to be more certain than uncertain. In deciding each claim, all the evidence presented, including oral testimony, has been considered and weighed to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
While this decision has not referred to all the evidence presented at the hearing or filed with the Tribunal, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to proving a claim that was part of the application has been omitted.
By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the required evidence. It is not the Tribunal’s responsibility to extract evidence.
The Tribunal must also have regard to the general principles of law and the substantial merits and justice of the case, as required by section 85(2) of the Residential Tenancies Act 1986 (RTA).
It is intended that this order be as concise as possible to convey the essential facts, the law and the Tribunal’s reason for its decisions. Unlawful entry
The tenant claims the landlord entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A RTA.
The landlord accepted that a contractor entered the property on 30 July 2025 and replaced smoke alarms without the tenant being given the required notice under section 48 RTA. The landlord advised that the email giving notice to the tenant of the visit was prepared but not sent.
The landlord has 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 other party, and the public interest. See section 109(3) RTA.
Intention is proved where the party turns their mind to the unlawful act and deliberately sets out to commit the act. It is unnecessary to prove that the party intended to act unlawfully. It is enough that they intended to commit the act which is in fact unlawful. Here, the landlord entered the property intentionally, that is, deliberately.
Essentially the factors in section 109(3) RTA require a consideration of the gravity of the unlawful act: that is, aggravating and mitigating factors. When considering the factors, it should be kept in mind that the object of exemplary damages is to punish and deter, not to compensate the victim of the unlawful act. If the effect of the unlawful act has been particularly severe on the applicant then this is likely to be an aggravating factor and, if it has had little or no effect, it will be a mitigating factor.
In this case the unlawful entry was for a lawful and proper purpose. It is accepted that the failure to issue the required notice was due to negligence. However, the landlord is a professional property management company who should have in place procedures that ensure compliance with the landlord’s obligation under the RTA. The purpose of section 48 RTA is to protect tenants from unexpected visits from the landlord which breach the tenants’ right to quiet enjoyment.
Having considered these factors, the Tribunal determines that an award of $500.00 in exemplary damages, being one third of the maximum available, is a sufficient sum to recognise the importance of landlords adhering to their obligations and respecting the rights of tenants.
Having awarded that sum of exemplary damages, the Tribunal is not persuaded that it is necessary or appropriate to award the tenant compensation for a breach that occasioned no harm to the tenant who was not at the property at the time. It is no doubt unpleasant to find that someone has let themselves into your home without consent but, here where the purpose was legitimate and caused no disturbance to the household, it is not necessarily something for which compensation is payable. The disturbance is too minimal to warrant compensation. Failure to maintain
The tenants claim that the landlord has breached their obligations under section 45 RTA by failing to provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The tenant provided the following evidence: a. The tenancy started on 24 January 2025. b. On 3 February 2025 the tenant emailed the landlord and advised that they “have noticed a weird septic smell in the stand-alone toilet” and two further issues. They noted: “Not urgent issues but just wanted to advise you of these problems.” c. The landlord responded the next day that the tenant should send her videos of “both issues” without any comment regarding the smell. d. The tenant did not follow this issue up with the landlord but believes that the smell worsened. e. On 14 June 2025 the tenant noticed a leakage at the base of the toilet. A photograph of the leakage was provided in evidence but it was not possible to see clearly any issue. f. On 18 June 2025 the toilet overflowed when flushed. Water and faecal matter spread over the floor and required cleaning by the tenant. g. The tenant contacted the owner directly who came to the property late that afternoon but could not clear the blockage with the tools he had with him. He returned the next day 19 June 2025 and cleared the blockage with a plunger. h. On 15 July 2025 the tenant emailed the landlord and advised: “I wanted to follow up regarding the toilet and drainage issue at the property. As you know, the toilet overflowed a couple of weeks ago and the landlord came by to address it - thanks again for that. However, I'm still very concerned that the underlying issue hasn’t been properly resolved. As I mentioned when he was here, the septic smell has been present since we moved in back in February, and it’s only gotten worse over time - it’s now spreading into the living room. This doesn't feel like an isolated incident, but rather something that's been building up over a long period. I also pointed out the moisture on the exterior wall outside the toilet, which seems like further evidence this is an ongoing issue. It felt like my concerns were brushed aside at the time, but to be honest, if this were my own home, I’d want to be sure the problem was properly investigated and permanently fixed. At this stage, we really need a longterm solution, not a temporary fix. We’d appreciate it if you could arrange for a full inspection by a professional plumber or drainage specialist to get to the bottom of it. It’s becoming a serious comfort and hygiene issue for us.” i. The landlord responded the same day that it understood the tenant’s concerns and advised the owner. j. Two days later on 17 July 2025, the landlord emailed the tenant: “Thanks for your phone call. As discussed the landlord is more than happy to arrange for a plumber to assess for a leak and the smell you have reported through. I spoke with the landlord and they advised they where unable to smell anything and when they checked the toilet there where no signs of leaks. Please note if there appears to be no issues you will be liable for the cost of the plumber. If you are happy to proceed please let me know and I will get this booked in.” k. The next day on 18 July 2025 the tenant responded: i. “I’m happy to proceed with a plumber, but I want to be clear that we don’t accept responsibility for any callout costs. The toilet has leaked previously, and the septic smell has persisted since February, as I’ve reported. We've done our best to clean up and air the place out, but the issue is ongoing — and we’ve attached photos showing clear evidence of water around the toilet.” l. The plumber, the landlord and the owner attended at the property on 26 July 2025. The plumber told the tenant that a seal had failed, faecal matter had built up under the toilet and that this was a longstanding issue that should have been dealt with earlier. m. The smell from the toilet was unpleasant and unhygienic. Because of the issue they avoided using this toilet for solids.
The landlord provided the following evidence in response: a. The tenant did raise some maintenance issues at the start of the tenancy but did not respond when they were asked for further information. b. At the two routine inspections on 14 February and 9 May 2025 no record was made of any maintenance issues or of any problem with smell. The landlord was not therefore aware that the toilet remained a live issue. c. The owner advised that he is a very experienced, registered drain layer. He gave evidence that he attended the property late in the afternoon on the day the tenant had complained of the blockage and fixed the issue that day when the tenant was not there. He plunged the toilet which cleared the blockage fand lushed the toilet repeatedly without the issue recurring. d. Two weeks later the owner came to the property and met the tenant at the front door. The tenant confirmed that the toilet was not blocking but that a bad smell remained. The owner could not smell anything and the tenant explained that this was because the window was open. He told the tenant that if the smell got worse he would send a plumber around. e. Having received the tenant’s email of 15 July, the landlord obtained instructions from the owner and agreed to have a plumber attend on 26 July 2025. f. The owner, the plumber and the landlord attended on that day. They could not detect any smell at the property and did not detect any leaking from the toilet. To be certain that there was no issue, the plumber removed the toilet and discovered that there was a seal missing. g. The plumber provided written evidence on 8 August 2025 to the landlord: “I was called by the landlord to investigate a sewer smell at the property. Upon my arrival there was no smell as I entered the property, there was no smell as I walked down the hallway past the bathroom. I opened the door to the separate toilet and there was a very faint smell of sewerage. After a few questions and description of recent events, I found out the toilet had blocked recently and was cleared by the landlord. I removed the toilet to investigate further, during this investigation I found the rubber seal on the P to S adapter was no longer in place. This was the cause of the slight sewer smell. This is not a common fault, but I have seen this happen a handful of times during my 15 years as a plumber, I’m not sure how they fall off but it can happen. I believe this could have been the cause of the toilet blocking and once the toilet was plunged to clear, the adaptor would have been washed down the drain. The rubber may perish and become loose for some reason. The property is about 12 years old with all the original plumbing. I installed a new P to S trap adaptor with new rubber seals and reinstalled the existing toilet. I don’t believe this issue has been long term as the toilet blockage was cleared a week before I was asked to view the property and there have been other tenants living at the address.” h. The landlord acknowledged that there had been an issue but that it had only lasted a period of 39 days. The blockage issue had been resolved quickly and, as there were two toilets in the property, the tenant was not unduly inconvenienced.
The tenant responded to the landlord’s evidence as follows: a. The tenant had contracted to have two working toilets. Only one had worked properly and the other had leaked and caused an unpleasant smell throughout the tenancy until the repair on 26 July 2025. b. The tenant had done their best to minimise and live with the smell but was proven right when it was found that a seal was missing. Consideration and decision
It is well settled that the landlord’s obligation under section 45(1)(b) RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances. What timeframe is reasonable depends on the gravity of the problem. A tenant has a duty to advise the landlord of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The Tribunal accepts that the landlord fixed the issue with the blocked toilet in a reasonable time whether it was on 18 or 19 June 2025 because, while the issue was urgent, the property had a second toilet so that the tenant was not without facilities and a repair within 24-hours is reasonable. Any claim in relation to that incident is dismissed.
The evidence shows that while the tenant complained about the smell issue at the start of February, there is no evidence from either party that the tenant made any further complaint until two weeks after the blockage incident on 18 June, that is, the beginning of July. The owner investigated that complaint with the tenant and could not detect any smell or issue that needed resolution.
Having received the tenant’s email complaint on 15 July, the landlord arranged to have the toilet investigated on 26 July 2025. The plumber found and fixed the problem. His written opinion provided to the Tribunal was that the seal was dislodged at the time the owner plunged the toilet to fix the blockage on 18 June. The Tribunal accepts this evidence as the plumber’s written evidence is better evidence than the tenant’s recollected hearsay evidence of what the plumber told the tenant was the cause of the issue.
On the evidence before it, the tenant has not persuaded the Tribunal on the balance of probabilities that the landlord failed to maintain the property by investigating and fixing the smell from 3 February to 26 July 2025. The tenant did no more than alert the landlord to a possible issue on 3 February but did not raise the issue again until 15 July 2025.
There is no evidence of any smell except the tenant’s own recollection. The Tribunal accepts that it is difficult to provide evidence of a smell during a tenancy. We are not each equally susceptible to smells. Some people have super smell receptors, others can barely smell any but the most pungent odours. In this case, the owner, the property manager and the plumber gave evidence that they did not smell anything untoward at the property. The issue was not raised or recorded in either of the routine property inspections in February and May. This means that the tenant’s evidence is not more likely to be true than the landlord’s evidence.
However, the landlord persisted with investigations because of the sincerity of the tenant. The tenant was proven correct. There was an issue with the toilet that probably gave rise to the smell of which the tenant had complained.
As noted, the Tribunal accepts the expert evidence of the plumber that the loss of the seal and the origin of the issue may have been caused at the time the landlord plunged the toilet on 18 June. This is also consistent with the tenant reporting the issue and taking indistinct photographs of leakage on 15 July.
The Tribunal is therefore persuaded that there was an unresolved issue with the toilet and associated smell from 18 June to 26 July 2025, a period of 39 days or five weeks and four days.
It is appropriate that the tenant be compensated for living with the smell and a not fully functioning toilet during this period.
In the Tribunal’s decision 4315225, the learned adjudicator set out the following bands of damages to usefully inform the Tribunal’s decision in assessing compensation for general damages: “A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $1,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $1,000.00 to $2,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of $2,000.00 and upwards.”
As discussed at the hearing, the tenant’s claim falls in the first band A: the tenant suffered inconvenience, frustration and annoyance. On the facts of this case, an award of $500.00 is appropriate. This equates to nearly $100.00 per week which as a proportion of the weekly rent of $625.00 is significant, while the total sum remains within band A.
The Tribunal is not persuaded that it is appropriate to make an award of exemplary damages for the following reasons: a. The owner reasonably believed that the issue had been fixed on 18 June. He diligently and responsibly checked again with the tenant two weeks later but could not detect an issue. He did not ignore the tenant’s complaint. b. When the tenant persisted with their complaint on 15 July when the tenant claimed that the toilet leaked, the landlord arranged for a qualified plumber to inspect the issue thoroughly. The issue was found and fixed on 26 July. c. Given the owner’s previous recent inspection of the property and the nature of the problem, a delay of eleven days is not so unreasonable that it would be just to punish the landlord by an award of exemplary damages to the tenant.
Because [The applicant/s] have substantially succeeded with their claim I have reimbursed the filing fee.

Tenancy Tribunal case 5328741 — Exemplary damages at Unit/Flat Flat 1, 18 Sinclair Street, Ebdentown, Upper Hutt

At a glance

Tenancy Tribunal case 5328741 — Exemplary damages at Unit/Flat Flat 1, 18 Sinclair Street, Ebdentown, Upper Hutt

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions