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Tenancy Tribunal case 5343959 — Healthy homes at 3 Onehuka Road, Tirohanga, Lower Hutt 5010

Decided 17 Nov 2025 · Published 17 Nov 2025 · Application 5343959

Healthy homes
Exemplary damages

View official order on MoJ →Explore similar cases

At a glance

Key facts from the published tribunal order.

Location

Lower Hutt

Tribunal region

Adjudicator

C Boys

Dispute themes

Award balance

Gross awards, any bond applied per the order, and the remaining balance payable.

Gross award: $10,877.00
Total balance for Landlord to pay Tenant: $10,877.00

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 5343959 — net $10,877.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: abatement of rent while premises untenantable	$2,600.00	abatement of rent while premises untenantable
Exemplary damages: Failure to provide insulation statement	$250.00	Failure to provide insulation statement
Exemplary damages: Healthy Homes breaches	$7,200.00	have determined that Mr Zhu should pay exemplary damages, the maximum award is $7200. Such damages are designed to punish and deter unlawful acts.
Exemplary damages: Failure to lodge bond

Order

[The tenant/s] landlord/s] is to pay Mr [The tenant/s] tenant/s] $10,877 immediately.

Reasons

Both parties attended the hearing. Background
Mr Hutchinson’s tenancy began when on 29 January 2024 he signed an agreement headed “[f]lat/house-sharing agreement”. He moved in on 15 February 2024. He shared the premises, four bedroom house with various other tenancies during the course of his residence.
Mr Hutchinson says that when he moved in the premises were suffering from leaks from the roof, evidenced by buckets along the windowsill in the upstairs lounge. This is disputed.
Mr Hutchinson says that as the tenancy progressed the leak issues became worse. This progress to the point where on 2 July 2025 Mr Zhu in his own words withdrew the house as a rental, although I note that he continued to receive rent from Mr Hutchinson after this date.
Mr Hutchinson’s tenancy finished on 24 August 2025.
Mr Hutchinson brings claims for: a. a refund of rent on the basis that the premises were untenantable due to leaks; exemplary damages for breaches of healthy homes obligations; b. exemplary damages for Mr Zhu’s failure to lodge the bond; c. exemplary damages for Mr Zhu’s failure to provide healthy homes information; d. exemplary damages for missed issues failure to provide a copy of the tenancy agreement; e. compensation for the costs of healthy homes report; and f. reimbursement of the filing fee. Jurisdiction
Mr Zhu says that Mr Hutchinson’s tenancy was under a flat share arrangement, which created a licence to occupy, but does not constitute a residential tenancy. Therefore, he says that the Residential Tenancies Act 1986 (RTA) does not apply, the Tribunal has no jurisdiction, and Mr Hutchinson’s claims must be considered under the common law.
Section 2 RTA defines “tenancy” as: [I]n relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent;
Section 4 RTA states: “[t]his Act applies to every tenancy for residential purposes except as specifically provided.”
Section 11 RTA sets out that an agreement or any term of agreement which is inconsistent with the RTA is of no effect.
There are exceptions to these rules, such as where a landlord or their family occupies the premises, and let out part of it to a border. In this case the evidence was that Mr Zhu had not occupied the premises during the tenancy, although he had kept one-bedroom free for his use but had not used it.
It appears that Mr Zhu may have received advice from this relating to the flat sharing arrangement which has led him to form a conclusion that the RTA does not apply. However, the sections of the RTA referred to above are clear. I conclude that Mr Zhu was a landlord, Mr Hutchinson was his tenant, and their relationship is subject to the RTA.

Was the house tenantable?

S 59(4) RTA says: Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable,— (a) the rent shall abate accordingly...
At the heart of Mr Hutchinson’s claim is a position that the leaking roof means that the house was uninhabitable throughout the tenancy, and therefore his rent should be abated in its entirety.
In Nisbet v Te Ahuru Mowai Limited 1 when considering whether a methamphetamine contaminated property was in habitable the court said: Whether or not a premises is uninhabitable will depend on the nature of the damage, the safety risks presented by it, the nature of the property itself and its occupants. Also relevant to the assessment is the extent to which the relevant damage interferes with the functionality and use of the property. In addition, it may also be appropriate to take into account the kind of occupant of the property. For instance, elderly, disabled or child tenants may be more affected by contamination than others might be.
There is also the concept that part of the tenancy may be unusable due to its condition, but that does not mean that the entire tenancy is uninhabitable. S 59 (4) refers to parts of premises being damaged to account for this eventuality.
My considerations here are: a. Mr Hutchinson has provided photos taken on 15 February 2024 showing buckets on the windowsill in the upstairs lounge, and what appears to be mildewed formal the wallpaper. Mr Zhu says that these photos have been tampered with in some way and has provided photos taken of the same area in January 2025 which do not show the same levels of mould or mildew. I do not accept that the photos or the timestamps have been tampered with. I note that the photos provided by Mr Zhu show the roof and windows frame has been painted in the time when the two photos. However arrears of mildew still show through under the pelmet and the upper window reveal. I conclude that Mr Hutchinson’s photos show that from the outset of the tenancy buckets were being used to catch rain water coming through the 1 Nisbet v Te Ahuru Mowai Limited [2024] NZHC 2467 inner window frame, and that there was a level of mould and mildew occurring at this stage. b. Mr Hutchinson’s evidence was that by the end of the tenancy the buckets and saucepans being used were insufficient to deal with the volume of water leaking through during rain, and instead 20 L storage containers were used. He estimated that at the start of the tenancy the 10 saucepans and buckets would fill daily, by the end of the tenancy the 15 x 20 L containers needed to be emptied multiple times a day. c. Mr Hutchinson says that he raised the issue of the leaks with Mr Zhu face- to-face on a number of occasions. He said that Mr Zhu would visit the property 2 to 3 times a month. Mr Zhu said this did not happen and said there were also no emails about the issues. However, Mr Zhu gave evidence that he had asked Rob, another tenant who was a qualified builder but had been on the sickness benefit to do repair work in January 2025 to the roof. However, the evidence is that Rob did not manage to deal with the issues. This, and Mr Zhu’s evidence that he is contracting to replace the roof, support Mr Hutchinson’s position that the roof was in a bad and deteriorating state. d. On 1 July 2025, Mr Zhu withdrew the property from the market due to its condition and the need for repairs to the roof. Mr Hutchinson was overseas at the time, but the remaining tenants moved out at this stage. e. The evidence from Mr Richards who inspected the property and prepared a healthy homes report was that by August 2025 there was significant mould and mildew in a number of areas throughout the property, and ceiling tiles had collapsed water damage in the upstairs lounge. Mr Richards who is also qualified in mould and mildew sampling and microbiology studies, was of the opinion that the mould and mildew seen was not recent and its appearance and the premises would have needed to be in a wet state for at least three weeks when he inspected. He said in the six years that he has been involved in doing healthy homes reports this would be the worst condition he has seen a house in. He referred to the leaks being in the upstairs lounge both in the corner with the windowsill leaks and in two or three other places across the lounge buckets from the always. He referred to the carpet being sodden in the lounge, and he referred to seeing mould in all four downstairs bedrooms. In his view in August 2025 the levels of mould throughout the house made it uninhabitable. f. In the last few weeks of the tenancy Mr Hutchinson gave evidence that he was wearing a dust mask when sleeping, out of concern at the mould levels in the tenancy. g. The photos appended to Mr Richards report show at least four areas in the upstairs lounge where ceiling tiles are visibly affected by water damage and mould. h. The tenancy is a two story property, with four bedrooms bathroom, shower room, and lounge downstairs, and a kitchen upstairs lounge, and dining room on the upper floor.
There is no question that by 1 July 2025, the premises were uninhabitable leading to Mr Zhu’s decision to terminate the other tenant’s tenancies. This issue before me is when it became uninhabitable.
Mr Hutchinson’s position is that it was uninhabitable from the outset. With regard to this I note that the worst of the leaks affected the upstairs lounge. At first these affected only the area near the window. However, as time progressed the leaking worsened until the entire lounge was affected. It then appears that the amount of water entering the lounge has gone on to affect the entire property, as carpets have become sodden, it is likely at this stage that water has entered the ceiling and wall cavities, soaking into framing, and causing the mould which has affected the rooms downstairs.
Mr Zhu says that when he left to go on his overseas trip in January 2025, the house was in reasonable condition. However, this is not supported by the fact that the leaks were at a point where he asked Rob to carry out repairs. He’s provided text messages he had with Mr Hutchinson where it was indicated that “house and lawns are looking good”. He argued that Mr Hutchinson wasn’t summary responsible for the condition of the house as Mr Zhu had asked Mr Hutchinson to be the head tenant in return for a rent reduction of $20 per week while he was overseas. However, Mr Zhu cannot delegate his responsibilities as a landlord to a tenant.
It turned out work that Rob did was simply to place bricks on roofing iron to stop wind from lifting the sheets. It does not appear that the temporary adhesive roof repair strips referred to in texts were applied. The last correspondence about the repairs was 19 February 2025.
I acknowledge that the evidence about when the house became uninhabitable is disputed and is incomplete. Nonetheless, I am required to make findings as to when this has occurred. I conclude that: a. the condition of the upstairs lounge was such that it was in effect unusable from early in the tenancy, and rent will abate by $10 a week from 1 July 2024. I arrive at this date on the basis that Mr Zhu had agreed to address the roof leaks when the tenancy began but had not done so. And by this stage of midwinter the evidence was that the buckets were increasingly inadequate for the amount of water coming through the roof. The $10 a week figure recognises that there was another lounge room available however there was a loss of amenity. This equates to $10 a week for 60 weeks, therefore, Mr Zhu must pay $600 in abatement. b. The rest of the house appears to have continued to be habitable provided the tenants were diligent in emptying the buckets and storage containers that are catching water entering the lounge. It appears that when Mr Hutchinson went overseas in June 2025, the situation changed in the condition of the house worsened rapidly. I conclude that from mid June 2025 the condition of the house, in its entirety, was such that it was uninhabitable. Therefore, Mr Zhu must refund all rent paid by Mr Hutchinson from 15 June 2025. c. There was a question during the hearing as to the weekly amount of rent claimed by Mr Hutchinson. He had claimed the entire amounts paid to Mr Zhu of $290 a week. However, as read calculated as $200 a week for the room $55 a week for the garage and carport in which he stored his vintage cars, and a shared utility cost of $35 a week. The amenity of the garage and carport costs were not affected by the leaks and therefore these costs are not subject to abatement. Likewise, the utility costs are not subject to abatement. Based on this I conclude that Mr Zhu must refund Mr Hutchinson 10 weeks rent at $200 a week for this period for $2000 as abatement.
In total Mr Zhu must pay Mr Hutchinson $2600 as abatement of rent. Healthy Homes Breaches
Mr Hutchinson claims that Mr Zhu has breached his healthy homes obligations, including: a. the obligations to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. This requires that from 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition. There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated. b. the obligations to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) with relations to minimum heating, draft stopping, and moisture ingress. Private rentals where a tenancy commenced between 28 August 2022 and 3 March 2025 must comply within 120 days of the commencement of any new or renewed tenancy. The moisture standard requires the installation of a ground moisture barrier when there is an enclosed subfloor space.
Mr Zhu claims that the tenancy did not need to comply prior to 1 July 2025. This is not correct. All private rentals were required to comply with the insulation standard from 1 July 2019, and with the other standards from 120 days from the start of the tenancy, or May 29 2024. Mr Hutchinson has provided a Healthy Homes Report prepared by Mr Richards. The report is in the standard format used for such reports. It sets out a number of areas of non-compliance. Water ingress, drainage and moisture standards
The worst area of non-compliance is the water ingress and moisture standard. Viewing the report, it describes the roof issues discussed above and additionally set out that gutters and downpipes were in poor condition with holes, the ground adjacent to the house had pooling, where water had escaped the drains, guttering, or downpipes, and identified an area where 2 rotten weatherboards had partially collapsed, leaving an open hole in the cladding. There is no vapour barrier installed, however, the photos shows that part of the subfloor space has a low clearance, approximately 0.3 m, which suggests that the exemption for tight spaces applies.
These breaches are significant, and from the photos the issues identified are plainly apparent. There are no exemptions which apply to the breach of the standard. There is also a direct link between the water ingress and the issues with untenantability referred to above.
Breaching the landlord’s healthy homes obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
These breaches are an unlawful act, and I must consider whether an award of exemplary damages is appropriate. Section 109(3) RTA sets out the factors to be considered: a. The landlord’s intentions are relevant. Here the evidence is that Mr Zhu was aware of the issues for the life of the tenancy, evidenced by the advanced nature of the rot and water damage, Mr Zhu’s comment that he was going to repair the roof, and the presence of buckets to catch water. Mr Zhu was not a landlord who was absent from the premises, and visited often, therefore, he must have been aware of the issues. He approached Rob, Mr Hutchinson’s co-tenant, and asked him to carry out repairs. The evidence supports an inference that Mr Zhu was motivated by a desire to avoid paying the cost to maintain and repair the premises. Mr Zhu’s beliefs that the RTA and the HHS do not apply, is no defence. b. The effect of the unlawful act was that Mr Hutchinson lived for approximately 18 months in a tenancy which was unhealthy initially, and potentially dangerous to his health by the end of the tenancy. c. It is in the interests of tenants that they receive dry, warm healthy accommodation, in return for the rent they pay. This has not occurred in this case. d. The public interest is served by tenants not being exposed to unhealthy conditions which may lead to their needing to access public health services.
In this case I have determined that Mr Zhu should pay exemplary damages, the maximum award is $7200. Such damages are designed to punish and deter unlawful acts. 2 The breaches in this case are serious in comparison with other similar cases which have come before me and deserve a relatively high level of response. However, this is the first time Mr Zhu has come before the Tribunal, therefore, I consider that a 1/3 discount is appropriate and order that Mr Zhu is to pay $4800 in exemplary damages for the breaches of the water ingress, moisture and drainage standards. Insulation standards
The report sets out that there is no underfloor insulation. As with the vapour barrier discussed above, the report suggests that a significant part of the subfloor space has insufficient clearance.
While, the photos show that some of the subfloor area is accessible, I am unable to calculate how much. I also not that the subfloor itself is dry in the photo, suggesting that any subfloor moisture issues will be of minimal additional effect. Given this, I cannot find a breach would be reach the level of an unlawful act. Heating
The report identifies that the heating unit in the main living area, a older style Chatswood, ducted gas heater, is theoretically sufficient for the space, but is older, in poor condition, and does not appear to have been recently serviced. The report records that the heater was not tested, and so its performance and functionality could not be commented on.
The issue for me here is that the report identifies non-compliance but is equivocal about the extent of the non-compliance. Given this a breach of the HHS is not made out to the extent that the evidence supports a finding that any breach is unlawful. Draft stopping
The report identifies a number of issues with draft stopping. These relate to the windows and doors in most rooms in the tenancy, and to the closing off of an unused fireplace. The report identifies a mixture of broken or non-functional 2 See Auckland City Council v Blundell [1986] NZLR 732 window hardware, gaps between window and door joinery and frames, and that the gaps are greater than 3mm. The standard requires that the age and condition of the property must be taken into account. In this case the building is a 1960s built residential house, with bevel-back weatherboards, flat roofs with profile iron roofing, and a suspended floor on a concrete perimeter foundation and internal concrete piles. It appears from its features that the house Apart from the HHS issues the subfloor photos show it is in reasonable structural condition for its age.
The extent of the draft stopping issues leads me to conclude that these breaches are unlawful acts. I must consider whether an award of exemplary damages is appropriate. Section 109(3) RTA sets out the factors to be considered: a. The landlord’s intentions are relevant. Here the extent of the issues with suggests that Mr Zhu was aware or should have been aware of the issues. As above the evidence supports an inference that Mr Zhu was motivated by a desire to avoid paying the cost to maintain and repair the premises. Mr Zhu’s beliefs that the RTA and the HHS do not apply, is no defence. b. The effect of the unlawful act was that Mr Hutchinson lived for approximately 18 months in a drafty tenancy which would have been difficult to heat and maintain at a healthy temperature. c. It is in the interests of tenants that they receive dry, warm healthy accommodation, in return for the rent they pay. This has not occurred in this case. d. The public interest is served by tenants not being exposed to unhealthy conditions which may lead to their needing to access public health services.
In this case I have determined that Mr Zhu should pay exemplary damages, the maximum award is $7200. The breaches here are widespread but are not as serious as the water ingress, moisture, and drainage breaches. I consider that a 2/3 discount is appropriate and order that Mr Zhu is to pay $2400 in exemplary damages for the breaches of the draft-stopping standard. Failure to lodge bond
Mr Hutchinson claims Mr Zhu has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
Mr Zhu accepts he did not lodge the bond. He says he tried to but was advised that he could not as the tenancy was a flat share arrangement. I accept this, however, ignorance of the law is no defence. The RTA obligation to lodge bond serves two purposes: a. It protects tenants and landlords from bonds being lost or unavailable by having them held securely in a ministry fund; and b. The investment earnings from the bonds held provide funding used to provide the very tenancy services which Mr Zhu consulted.
Mr Zhu’s failure to lodge the boind came from ignorance, but the the decision to use the flatmate agreement was an action that was taken intentionally and the drafting of the agreement leads me to conclude that it is intended to avoid falling within the jurisdiction of the RTA and this Tribunal. I conclude the failure was an unlawful act. Considering the S109(3) factors I conclude that the breach was intentional, it meant that Mr Hutchinson’s bond was not held securely, and deprived the public purse of funding for tenancy services.
I conclude that a discount from the maximum of 2/3s is appropriate given that this is Mr Zhu’s first such breach. I order that Mr Zhu is to pay $500. Disposing of tenant’s goods .
Mr Hutchinson claims Mr Zhu has taken some of his goods, in particular food left in the house freezer when he left for Europe. On his return he discovered that the freezer had been emptied. Mr Zhu accepted that he had disposed of food from the freezer and it was agreed that Mr Hutchinson would pay $80 less in the next rent payment. This occurred, although there was a disagreement about the rent payments relating to the agreement that Mr Hutchinson act as head tenant.
A landlord must not seize or dispose of any of the tenant’s goods, except where they are disposed of under sections 62 to 62C of the Residential Tenancies Act 1986. See section 33(1) and (4) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $3,000.00. See section 33(2) and Schedule 1A Residential Tenancies Act 1986.
There was a direct conflict in the parties evidence about what was in the freezer and its condition. I cannot resolve this conflict as there is no additional evidence to push either parties’ description of events beyond the balance of probabilities. I also note that the agreement to accept $80 suggest that the parties had settled this issue between themselves, and it would be inappropriate for the Tribunal to revisit a matter agreed and settled. Failure to provide an insulation statement
Mr Hutchinson claims Mr Zhu has not included insulation details in the tenancy agreement.
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
[The tenant/s] landlord/s] failed to provide an insulation statement. In part this is because the agreement used was not an RTA compliant tenancy agreement. However, as discussed above in relation to the flat sharing agreement used, this is not a defence. I find Mr Zhu has committed an unlawful act.
As above the use of the non-complaint agreement was intentional. It denied Mr Hutchinson information about whether the tenancy complied with the insulation standard, and also deprived Mr Zhu of a check for himself that his property was compliant and fit to be used for tenancy purposes. Compliance with the HHS and insulation standards are in the public interest, as discussed above.
As with the bond issue a 2/3s discount is appropriate. I order that Mr Zhu is to pay Mr Hutchinson $250. Failure to provide Healthy Homes information
Mr Hutchinson claims that Mr Zhu has breached the obligations under section 45 of the Residential Tenancies Act 1986, to supply on request the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.
However, Mr Hutchinson does not appear to have made such a request to Mr Zhu, therefore the obligation was never triggered, and no breach arises. Failure to provide a copy of tenancy agreement
Mr Hutchinson claims Mr Zhu did not provide a copy of the tenancy agreement to him.
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
On 29 January 2024, Mr Zhu and Mr Hutchinson both signed the agreement. Mr Hutchinson says that he was not subsequently provided with a copy. Mr Zhu says he took a photo of the agreement and Mr Hutchinson did the same. Mr Hutchinson denies this. As above, when the Tribunal is faced with two competing descriptions of an event with no additional material, neither party can prove the fact alleged is more likely than not to have occurred. Therefore I cannot find that a breach has occurred.
Because [The tenant/s] tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Topics & place

Topics are dispute themes across the order (not the same as claim-type money lines).

Healthy homes Exemplary damages Lower Hutt

Residential Tenancies Act sections

s109(3), s11, s13, s13(1F), s13(4), s13A(1A), s13A(1B), s19, s19(1), s19(2), s2, s2016, s24, s26, s31, s33(1), s33(2), s4, s45, s45(1A), s45(1AD), s59, s59(4), s62

Key findings

Dispute theme: exemplary damages
Dispute theme: healthy homes

Frequently asked questions

Common questions about this Tenancy Tribunal case.

What was Tenancy Tribunal case 5343959 about?

The tribunal order states: [The tenant/s] landlord/s] is to pay Mr [The tenant/s] tenant/s] $10,877 immediately.

How much money was awarded in case 5343959?

Compensation: abatement of rent whil…: $2,600.00 awarded to tenant; Compensation: Healthy Homes Report: $299.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $7,200.00 awarded to tenant; Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5343959?

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

Where can I read the official tribunal order for case 5343959?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12697187-Tenancy_Tribunal_Order.pdf.

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Claims and awards in Tenancy Tribunal application 5343959 — net $10,877.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.

Claim

Landlord

Tenant

Reason

Compensation: abatement of rent while premises untenantable

$2,600.00

abatement of rent while premises untenantable

Exemplary damages: Failure to provide insulation statement

$250.00

Failure to provide insulation statement

Exemplary damages: Healthy Homes breaches

$7,200.00

have determined that Mr Zhu should pay exemplary damages, the maximum award is $7200. Such damages are designed to punish and deter unlawful acts.

Exemplary damages: Failure to lodge bond

Reasons

Both parties attended the hearing. Background

Mr Hutchinson’s tenancy began when on 29 January 2024 he signed an agreement headed “[f]lat/house-sharing agreement”. He moved in on 15 February 2024. He shared the premises, four bedroom house with various other tenancies during the course of his residence.

Mr Hutchinson says that when he moved in the premises were suffering from leaks from the roof, evidenced by buckets along the windowsill in the upstairs lounge. This is disputed.

Mr Hutchinson says that as the tenancy progressed the leak issues became worse. This progress to the point where on 2 July 2025 Mr Zhu in his own words withdrew the house as a rental, although I note that he continued to receive rent from Mr Hutchinson after this date.

Mr Hutchinson’s tenancy finished on 24 August 2025.

Mr Hutchinson brings claims for: a. a refund of rent on the basis that the premises were untenantable due to leaks; exemplary damages for breaches of healthy homes obligations; b. exemplary damages for Mr Zhu’s failure to lodge the bond; c. exemplary damages for Mr Zhu’s failure to provide healthy homes information; d. exemplary damages for missed issues failure to provide a copy of the tenancy agreement; e. compensation for the costs of healthy homes report; and f. reimbursement of the filing fee. Jurisdiction

Mr Zhu says that Mr Hutchinson’s tenancy was under a flat share arrangement, which created a licence to occupy, but does not constitute a residential tenancy. Therefore, he says that the Residential Tenancies Act 1986 (RTA) does not apply, the Tribunal has no jurisdiction, and Mr Hutchinson’s claims must be considered under the common law.

Section 2 RTA defines “tenancy” as: [I]n relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent;

Section 4 RTA states: “[t]his Act applies to every tenancy for residential purposes except as specifically provided.”

Section 11 RTA sets out that an agreement or any term of agreement which is inconsistent with the RTA is of no effect.

There are exceptions to these rules, such as where a landlord or their family occupies the premises, and let out part of it to a border. In this case the evidence was that Mr Zhu had not occupied the premises during the tenancy, although he had kept one-bedroom free for his use but had not used it.

It appears that Mr Zhu may have received advice from this relating to the flat sharing arrangement which has led him to form a conclusion that the RTA does not apply. However, the sections of the RTA referred to above are clear. I conclude that Mr Zhu was a landlord, Mr Hutchinson was his tenant, and their relationship is subject to the RTA.

Was the house tenantable?

S 59(4) RTA says: Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable,— (a) the rent shall abate accordingly...

At the heart of Mr Hutchinson’s claim is a position that the leaking roof means that the house was uninhabitable throughout the tenancy, and therefore his rent should be abated in its entirety.

In Nisbet v Te Ahuru Mowai Limited 1 when considering whether a methamphetamine contaminated property was in habitable the court said: Whether or not a premises is uninhabitable will depend on the nature of the damage, the safety risks presented by it, the nature of the property itself and its occupants. Also relevant to the assessment is the extent to which the relevant damage interferes with the functionality and use of the property. In addition, it may also be appropriate to take into account the kind of occupant of the property. For instance, elderly, disabled or child tenants may be more affected by contamination than others might be.

There is also the concept that part of the tenancy may be unusable due to its condition, but that does not mean that the entire tenancy is uninhabitable. S 59 (4) refers to parts of premises being damaged to account for this eventuality.

My considerations here are: a. Mr Hutchinson has provided photos taken on 15 February 2024 showing buckets on the windowsill in the upstairs lounge, and what appears to be mildewed formal the wallpaper. Mr Zhu says that these photos have been tampered with in some way and has provided photos taken of the same area in January 2025 which do not show the same levels of mould or mildew. I do not accept that the photos or the timestamps have been tampered with. I note that the photos provided by Mr Zhu show the roof and windows frame has been painted in the time when the two photos. However arrears of mildew still show through under the pelmet and the upper window reveal. I conclude that Mr Hutchinson’s photos show that from the outset of the tenancy buckets were being used to catch rain water coming through the 1 Nisbet v Te Ahuru Mowai Limited [2024] NZHC 2467 inner window frame, and that there was a level of mould and mildew occurring at this stage. b. Mr Hutchinson’s evidence was that by the end of the tenancy the buckets and saucepans being used were insufficient to deal with the volume of water leaking through during rain, and instead 20 L storage containers were used. He estimated that at the start of the tenancy the 10 saucepans and buckets would fill daily, by the end of the tenancy the 15 x 20 L containers needed to be emptied multiple times a day. c. Mr Hutchinson says that he raised the issue of the leaks with Mr Zhu face- to-face on a number of occasions. He said that Mr Zhu would visit the property 2 to 3 times a month. Mr Zhu said this did not happen and said there were also no emails about the issues. However, Mr Zhu gave evidence that he had asked Rob, another tenant who was a qualified builder but had been on the sickness benefit to do repair work in January 2025 to the roof. However, the evidence is that Rob did not manage to deal with the issues. This, and Mr Zhu’s evidence that he is contracting to replace the roof, support Mr Hutchinson’s position that the roof was in a bad and deteriorating state. d. On 1 July 2025, Mr Zhu withdrew the property from the market due to its condition and the need for repairs to the roof. Mr Hutchinson was overseas at the time, but the remaining tenants moved out at this stage. e. The evidence from Mr Richards who inspected the property and prepared a healthy homes report was that by August 2025 there was significant mould and mildew in a number of areas throughout the property, and ceiling tiles had collapsed water damage in the upstairs lounge. Mr Richards who is also qualified in mould and mildew sampling and microbiology studies, was of the opinion that the mould and mildew seen was not recent and its appearance and the premises would have needed to be in a wet state for at least three weeks when he inspected. He said in the six years that he has been involved in doing healthy homes reports this would be the worst condition he has seen a house in. He referred to the leaks being in the upstairs lounge both in the corner with the windowsill leaks and in two or three other places across the lounge buckets from the always. He referred to the carpet being sodden in the lounge, and he referred to seeing mould in all four downstairs bedrooms. In his view in August 2025 the levels of mould throughout the house made it uninhabitable. f. In the last few weeks of the tenancy Mr Hutchinson gave evidence that he was wearing a dust mask when sleeping, out of concern at the mould levels in the tenancy. g. The photos appended to Mr Richards report show at least four areas in the upstairs lounge where ceiling tiles are visibly affected by water damage and mould. h. The tenancy is a two story property, with four bedrooms bathroom, shower room, and lounge downstairs, and a kitchen upstairs lounge, and dining room on the upper floor.

There is no question that by 1 July 2025, the premises were uninhabitable leading to Mr Zhu’s decision to terminate the other tenant’s tenancies. This issue before me is when it became uninhabitable.

Mr Hutchinson’s position is that it was uninhabitable from the outset. With regard to this I note that the worst of the leaks affected the upstairs lounge. At first these affected only the area near the window. However, as time progressed the leaking worsened until the entire lounge was affected. It then appears that the amount of water entering the lounge has gone on to affect the entire property, as carpets have become sodden, it is likely at this stage that water has entered the ceiling and wall cavities, soaking into framing, and causing the mould which has affected the rooms downstairs.

Mr Zhu says that when he left to go on his overseas trip in January 2025, the house was in reasonable condition. However, this is not supported by the fact that the leaks were at a point where he asked Rob to carry out repairs. He’s provided text messages he had with Mr Hutchinson where it was indicated that “house and lawns are looking good”. He argued that Mr Hutchinson wasn’t summary responsible for the condition of the house as Mr Zhu had asked Mr Hutchinson to be the head tenant in return for a rent reduction of $20 per week while he was overseas. However, Mr Zhu cannot delegate his responsibilities as a landlord to a tenant.

It turned out work that Rob did was simply to place bricks on roofing iron to stop wind from lifting the sheets. It does not appear that the temporary adhesive roof repair strips referred to in texts were applied. The last correspondence about the repairs was 19 February 2025.

I acknowledge that the evidence about when the house became uninhabitable is disputed and is incomplete. Nonetheless, I am required to make findings as to when this has occurred. I conclude that: a. the condition of the upstairs lounge was such that it was in effect unusable from early in the tenancy, and rent will abate by $10 a week from 1 July 2024. I arrive at this date on the basis that Mr Zhu had agreed to address the roof leaks when the tenancy began but had not done so. And by this stage of midwinter the evidence was that the buckets were increasingly inadequate for the amount of water coming through the roof. The $10 a week figure recognises that there was another lounge room available however there was a loss of amenity. This equates to $10 a week for 60 weeks, therefore, Mr Zhu must pay $600 in abatement. b. The rest of the house appears to have continued to be habitable provided the tenants were diligent in emptying the buckets and storage containers that are catching water entering the lounge. It appears that when Mr Hutchinson went overseas in June 2025, the situation changed in the condition of the house worsened rapidly. I conclude that from mid June 2025 the condition of the house, in its entirety, was such that it was uninhabitable. Therefore, Mr Zhu must refund all rent paid by Mr Hutchinson from 15 June 2025. c. There was a question during the hearing as to the weekly amount of rent claimed by Mr Hutchinson. He had claimed the entire amounts paid to Mr Zhu of $290 a week. However, as read calculated as $200 a week for the room $55 a week for the garage and carport in which he stored his vintage cars, and a shared utility cost of $35 a week. The amenity of the garage and carport costs were not affected by the leaks and therefore these costs are not subject to abatement. Likewise, the utility costs are not subject to abatement. Based on this I conclude that Mr Zhu must refund Mr Hutchinson 10 weeks rent at $200 a week for this period for $2000 as abatement.

In total Mr Zhu must pay Mr Hutchinson $2600 as abatement of rent. Healthy Homes Breaches

Mr Hutchinson claims that Mr Zhu has breached his healthy homes obligations, including: a. the obligations to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. This requires that from 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition. There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated. b. the obligations to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) with relations to minimum heating, draft stopping, and moisture ingress. Private rentals where a tenancy commenced between 28 August 2022 and 3 March 2025 must comply within 120 days of the commencement of any new or renewed tenancy. The moisture standard requires the installation of a ground moisture barrier when there is an enclosed subfloor space.

Mr Zhu claims that the tenancy did not need to comply prior to 1 July 2025. This is not correct. All private rentals were required to comply with the insulation standard from 1 July 2019, and with the other standards from 120 days from the start of the tenancy, or May 29 2024. Mr Hutchinson has provided a Healthy Homes Report prepared by Mr Richards. The report is in the standard format used for such reports. It sets out a number of areas of non-compliance. Water ingress, drainage and moisture standards

The worst area of non-compliance is the water ingress and moisture standard. Viewing the report, it describes the roof issues discussed above and additionally set out that gutters and downpipes were in poor condition with holes, the ground adjacent to the house had pooling, where water had escaped the drains, guttering, or downpipes, and identified an area where 2 rotten weatherboards had partially collapsed, leaving an open hole in the cladding. There is no vapour barrier installed, however, the photos shows that part of the subfloor space has a low clearance, approximately 0.3 m, which suggests that the exemption for tight spaces applies.

These breaches are significant, and from the photos the issues identified are plainly apparent. There are no exemptions which apply to the breach of the standard. There is also a direct link between the water ingress and the issues with untenantability referred to above.

Breaching the landlord’s healthy homes obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).

These breaches are an unlawful act, and I must consider whether an award of exemplary damages is appropriate. Section 109(3) RTA sets out the factors to be considered: a. The landlord’s intentions are relevant. Here the evidence is that Mr Zhu was aware of the issues for the life of the tenancy, evidenced by the advanced nature of the rot and water damage, Mr Zhu’s comment that he was going to repair the roof, and the presence of buckets to catch water. Mr Zhu was not a landlord who was absent from the premises, and visited often, therefore, he must have been aware of the issues. He approached Rob, Mr Hutchinson’s co-tenant, and asked him to carry out repairs. The evidence supports an inference that Mr Zhu was motivated by a desire to avoid paying the cost to maintain and repair the premises. Mr Zhu’s beliefs that the RTA and the HHS do not apply, is no defence. b. The effect of the unlawful act was that Mr Hutchinson lived for approximately 18 months in a tenancy which was unhealthy initially, and potentially dangerous to his health by the end of the tenancy. c. It is in the interests of tenants that they receive dry, warm healthy accommodation, in return for the rent they pay. This has not occurred in this case. d. The public interest is served by tenants not being exposed to unhealthy conditions which may lead to their needing to access public health services.

In this case I have determined that Mr Zhu should pay exemplary damages, the maximum award is $7200. Such damages are designed to punish and deter unlawful acts. 2 The breaches in this case are serious in comparison with other similar cases which have come before me and deserve a relatively high level of response. However, this is the first time Mr Zhu has come before the Tribunal, therefore, I consider that a 1/3 discount is appropriate and order that Mr Zhu is to pay $4800 in exemplary damages for the breaches of the water ingress, moisture and drainage standards. Insulation standards

The report sets out that there is no underfloor insulation. As with the vapour barrier discussed above, the report suggests that a significant part of the subfloor space has insufficient clearance.

While, the photos show that some of the subfloor area is accessible, I am unable to calculate how much. I also not that the subfloor itself is dry in the photo, suggesting that any subfloor moisture issues will be of minimal additional effect. Given this, I cannot find a breach would be reach the level of an unlawful act. Heating

The report identifies that the heating unit in the main living area, a older style Chatswood, ducted gas heater, is theoretically sufficient for the space, but is older, in poor condition, and does not appear to have been recently serviced. The report records that the heater was not tested, and so its performance and functionality could not be commented on.

The issue for me here is that the report identifies non-compliance but is equivocal about the extent of the non-compliance. Given this a breach of the HHS is not made out to the extent that the evidence supports a finding that any breach is unlawful. Draft stopping

The report identifies a number of issues with draft stopping. These relate to the windows and doors in most rooms in the tenancy, and to the closing off of an unused fireplace. The report identifies a mixture of broken or non-functional 2 See Auckland City Council v Blundell [1986] NZLR 732 window hardware, gaps between window and door joinery and frames, and that the gaps are greater than 3mm. The standard requires that the age and condition of the property must be taken into account. In this case the building is a 1960s built residential house, with bevel-back weatherboards, flat roofs with profile iron roofing, and a suspended floor on a concrete perimeter foundation and internal concrete piles. It appears from its features that the house Apart from the HHS issues the subfloor photos show it is in reasonable structural condition for its age.

The extent of the draft stopping issues leads me to conclude that these breaches are unlawful acts. I must consider whether an award of exemplary damages is appropriate. Section 109(3) RTA sets out the factors to be considered: a. The landlord’s intentions are relevant. Here the extent of the issues with suggests that Mr Zhu was aware or should have been aware of the issues. As above the evidence supports an inference that Mr Zhu was motivated by a desire to avoid paying the cost to maintain and repair the premises. Mr Zhu’s beliefs that the RTA and the HHS do not apply, is no defence. b. The effect of the unlawful act was that Mr Hutchinson lived for approximately 18 months in a drafty tenancy which would have been difficult to heat and maintain at a healthy temperature. c. It is in the interests of tenants that they receive dry, warm healthy accommodation, in return for the rent they pay. This has not occurred in this case. d. The public interest is served by tenants not being exposed to unhealthy conditions which may lead to their needing to access public health services.

In this case I have determined that Mr Zhu should pay exemplary damages, the maximum award is $7200. The breaches here are widespread but are not as serious as the water ingress, moisture, and drainage breaches. I consider that a 2/3 discount is appropriate and order that Mr Zhu is to pay $2400 in exemplary damages for the breaches of the draft-stopping standard. Failure to lodge bond

Mr Hutchinson claims Mr Zhu has not lodged the bond with the Bond Centre within the required time.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.

Mr Zhu accepts he did not lodge the bond. He says he tried to but was advised that he could not as the tenancy was a flat share arrangement. I accept this, however, ignorance of the law is no defence. The RTA obligation to lodge bond serves two purposes: a. It protects tenants and landlords from bonds being lost or unavailable by having them held securely in a ministry fund; and b. The investment earnings from the bonds held provide funding used to provide the very tenancy services which Mr Zhu consulted.

Mr Zhu’s failure to lodge the boind came from ignorance, but the the decision to use the flatmate agreement was an action that was taken intentionally and the drafting of the agreement leads me to conclude that it is intended to avoid falling within the jurisdiction of the RTA and this Tribunal. I conclude the failure was an unlawful act. Considering the S109(3) factors I conclude that the breach was intentional, it meant that Mr Hutchinson’s bond was not held securely, and deprived the public purse of funding for tenancy services.

I conclude that a discount from the maximum of 2/3s is appropriate given that this is Mr Zhu’s first such breach. I order that Mr Zhu is to pay $500. Disposing of tenant’s goods .

Mr Hutchinson claims Mr Zhu has taken some of his goods, in particular food left in the house freezer when he left for Europe. On his return he discovered that the freezer had been emptied. Mr Zhu accepted that he had disposed of food from the freezer and it was agreed that Mr Hutchinson would pay $80 less in the next rent payment. This occurred, although there was a disagreement about the rent payments relating to the agreement that Mr Hutchinson act as head tenant.

A landlord must not seize or dispose of any of the tenant’s goods, except where they are disposed of under sections 62 to 62C of the Residential Tenancies Act 1986. See section 33(1) and (4) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $3,000.00. See section 33(2) and Schedule 1A Residential Tenancies Act 1986.

There was a direct conflict in the parties evidence about what was in the freezer and its condition. I cannot resolve this conflict as there is no additional evidence to push either parties’ description of events beyond the balance of probabilities. I also note that the agreement to accept $80 suggest that the parties had settled this issue between themselves, and it would be inappropriate for the Tribunal to revisit a matter agreed and settled. Failure to provide an insulation statement

Mr Hutchinson claims Mr Zhu has not included insulation details in the tenancy agreement.

A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.

Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.

Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.

[The tenant/s] landlord/s] failed to provide an insulation statement. In part this is because the agreement used was not an RTA compliant tenancy agreement. However, as discussed above in relation to the flat sharing agreement used, this is not a defence. I find Mr Zhu has committed an unlawful act.

As above the use of the non-complaint agreement was intentional. It denied Mr Hutchinson information about whether the tenancy complied with the insulation standard, and also deprived Mr Zhu of a check for himself that his property was compliant and fit to be used for tenancy purposes. Compliance with the HHS and insulation standards are in the public interest, as discussed above.

As with the bond issue a 2/3s discount is appropriate. I order that Mr Zhu is to pay Mr Hutchinson $250. Failure to provide Healthy Homes information

Mr Hutchinson claims that Mr Zhu has breached the obligations under section 45 of the Residential Tenancies Act 1986, to supply on request the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.

Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.

However, Mr Hutchinson does not appear to have made such a request to Mr Zhu, therefore the obligation was never triggered, and no breach arises. Failure to provide a copy of tenancy agreement

Mr Hutchinson claims Mr Zhu did not provide a copy of the tenancy agreement to him.

A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.

On 29 January 2024, Mr Zhu and Mr Hutchinson both signed the agreement. Mr Hutchinson says that he was not subsequently provided with a copy. Mr Zhu says he took a photo of the agreement and Mr Hutchinson did the same. Mr Hutchinson denies this. As above, when the Tribunal is faced with two competing descriptions of an event with no additional material, neither party can prove the fact alleged is more likely than not to have occurred. Therefore I cannot find that a breach has occurred.

Because [The tenant/s] tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Net award		$10,877.00
Total payable by Landlord to Tenant		$10,877.00

Net award

$10,877.00

Total payable by Landlord to Tenant

$10,877.00

Net award		$10,877.00
Total payable by Landlord to Tenant		$10,877.00

Net award

$10,877.00

Total payable by Landlord to Tenant

$10,877.00