Published tribunal order
Tenancy Tribunal case 5346043 — Exemplary damages at Unit/Flat Flat 1, 149 Glasgow Street, Whanganui,
Decided 23 Mar 2026 · Published 23 Mar 2026 · Application 5346043
- Exemplary damages
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the parties’ names and identifying details.
- The Bond Centre is to refund the bond of $1,760.00 (BN-00089754) to the tenant immediately.
- [The landlord/s] must pay [The tenant/s] $2,200.00 immediately, being exemplary damages of $2,200.00 less the plumber costs of $1,167.58 for invoice 26 August 2025 of $667.58 and invoice 8 February 2025 reduced to $500.00.
Reasons
- Both parties attended the hearing.
- The tenant’s application was for compensation and exemplary damages for the landlord’s: a. Failure to maintain the premises by not repairing a leak between the bathroom and toilet, and a bedroom. See section 45(1)(b) Residential Tenancies Act 1986 (“RTA”). b. Issuing a retaliatory notice. See section 54 RTA.
- The tenant’s application included a claim for a breach of quiet enjoyment. At the hearing it became clear that this was not a separate claim, but related to a claim for the inconvenience and stress arising from the landlord’s failure to repair. It was therefore not argued separately and is not considered further by the Tribunal. For completeness’ sake, in the absence of any evidence in support of the claim, it is struck out. See section 92A RTA.
- The tenant also claimed a declaration from the Tribunal regarding a favourable reference from the landlord. There is no provision in the RTA relating to landlords giving references. The Tribunal lacks jurisdiction to make an order regarding this aspect raised by the tenant. This claim is also therefore struck out.
- The landlord’s claim was for compensation for the costs incurred in engaging a plumber to investigate the leak which it claimed was caused by the behaviour and actions of the tenant, not by a structural defect requiring repair. Standard of proof and evidence
- In considering the claims, the standard of proof is on the balance of probabilities. In other words, each party 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.
- Contemporaneous documents such as emails, texts, videos and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
- 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). The tenant’s claim for the landlord’s failure to repair
- The tenant provided the following evidence: a. The tenancy started on 2 June 2025. On 21 June 2025 he emailed the landlord to complain of dampness and a smell in the carpet in the bedroom adjoining the bathroom. b. The landlord responded by sending out a plumber. The tenant indicated to the plumber his belief that the dampness was caused by insufficient sealing between the bathroom and the bedroom which allowed water to seep into the bedroom carpet. c. After the plumber’s visit, the landlord advised the tenant that the plumber did not believe the issue was caused by a leak but by a failure to heat and ventilate the house properly. d. The tenant continued to complain to the landlord and gave evidence that the issue continued to get worse. e. Once again, the landlord sent its plumber to investigate and the tenant gave his opinion of what was causing the issue. The plumber inspected the wet carpet but did not investigate the area that the tenant claimed was causing the issue. f. The landlord sent the tenant the plumber’s invoice for his attendances on the basis that no repair was necessary and the plumber’s costs had been incurred because of the tenant’s use of the bathroom and toilet. g. Believing the issue was not fixed and denying liability for the plumber’s invoice, the tenant filed his application to the Tribunal on 16 September 2025. h. The issue persisted and the plumber came out several more times and eventually sealed areas of the floor which the tenant believes fixed the problem by the end of 2025.
- The landlord gave evidence in relation to the tenant’s claim and its own claim for the plumber’s costs as follows: a. The landlord’s plumber attended the property 14 times between 26 June and 29 December 2025 to investigate the tenant’s complaints. b. The first invoice dated 26 August 2025 records that having investigated the property, no active leak was found. In a separate letter to the landlord for the purpose of the hearing, the plumber stated: “Upon inspection, it was discovered that bidet toilet seat had been installed by the tenants and was leaking. This was removed, and the toilet area began to dry out. Subsequent visits identified significant amounts of water on the bathroom floor. The bathroom is not designed as a wet-floor bathroom and has standard tiled flooring. We observed that water was regularly being splashed across the bathroom floor outside of the shower cubicle. This water was entering the tile grout lines and tracking beneath the tiles and flooring structure, eventually travelling through to the bedroom area. On multiple occasions we set up fans and dehumidifiers within the property in order to dry the affected areas and assist with identifying any ongoing leaks. The tenants were instructed to leave these units operating. However, when we returned the following day, the equipment had repeatedly been switched off, which prevented effective drying and made it difficult to properly identify the source of moisture. On 25 December 2025 we were called back to the property to inspect the issue again. At this stage it became clear that the tenants were continuing to use the bathroom in a manner that allowed water to spread across the bathroom floor, despite our explanations and advice on how the bathroom should be used. We carried out sealing work to the grout joints in the bathroom floor in an attempt to reduce water penetration. However, the bathroom floor does not have a waterproof membrane installed beneath the tiles, and therefore it is not designed to contain large amounts of water outside of the shower cubicle. Based on our inspections and the work carried out, the moisture affecting the bedroom was not caused by a plumbing leak or failure of the bathroom installation. The water ingress was occurring because the bathroom was being used in a way that allowed significant volumes of water to spread across the tiled floor outside of the shower cubicle. This water was then penetrating through grout lines and tracking into the adjacent bedroom. In our professional opinion, the ongoing moisture issues were the result of user behaviour and misuse of the bathroom, rather than any fault with the plumbing installation, property management, or contractors attending the site.” c. The plumber’s invoice of 8 February 2026 covering attendances from 13 October to 29 December 2025 noted: “Checked bathroom and found floor saturated from shower use and basin washing. The water ingress is caused by splashing water around the bathroom. This area is not classified as a wet floor area, therefore the tiles do not have a waterproof membrane beneath them. While the grout has been sealed, this will not prevent all water from migrating under the tiles. The area is designed to tolerate minor dampness, however it is not intended to be regularly saturated.” d. The cause of the issue was twofold. Firstly, the incorrect installation of the bidet in the adjoining toilet room was spilling water onto the floor which also seeped under the wall into the bedroom. Secondly, the tenant’s use of the shower and bathroom in not protecting the floor from an excessive amount of water. The floor was not a wet floor and was unable to cope with the amount of water that the tenant was regularly allowing to inundate the surface. e. In summary, it took all reasonable steps to try to fix the issue. Its plumber’s professional opinion was that the dampness was caused by the tenant’s actions and not by any defect in the property which the landlord was required to fix. Consideration and discussion of both the tenant’s and the landlord’s claims
- On the evidence before the Tribunal, it is not persuaded on the balance of probabilities that the landlord failed to maintain the premises in a reasonable state of repair for the following reasons: a. The plumber’s professional opinion after more than a dozen visits was that the issue was caused by the tenant’s manner of using the bathroom and the bidet defectively installed by the tenant. b. The tenant’s belief that the issue was caused for the same reason as an issue he had at home was not supported by any professional evidence. It is possible that his bathroom at home was a wet floor bathroom and built accordingly. The bathroom in this property was not and the landlord had no obligation to improve it to a condition where it would withstand such conditions.
- The tenant’s claim in relation to the bathroom repairs is dismissed.
- Because the tenant has failed to prove that there was a defect that the landlord had a legal obligation to fix, the landlord’s claim for the cost of plumber attendances is proven. In the absence of a discoverable defect which required repair, the liability for payment rests with the tenant. Given the number of attendances, the total claimed is modest and all attendances were made at the insistence of the tenant.
- While not persuaded that the water issue was caused by a structural issue with the property which imposed an obligation on the landlord to repair, the landlord’s invoice of 8 February 2026 records that the plumber “Sealed floor tiles and silicone skirting boards to prevent further water ingress.” This is an improvement to the bathroom for which the tenant is not liable. It may have been done at the request of the tenant, but the Tribunal has no evidence that he consented to meeting payment. The amount awarded the landlord in relation to this invoice has therefore been reduced to $500.00. Tenant’s claim for retaliatory notice
- On 7 January 2026 the landlord gave the tenant a notice ending the tenancy on 7 April 2026. The tenant claims the notice was retaliatory.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) RTA.
- Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A RTA.
- The tenant claimed that when the tenant advised the landlord that he had filed an application to the Tribunal, the landlord responded by asking the tenant to reduce the number of people to that allowed under the tenancy agreement. The tenant also claimed that the landlord’s notice was on the basis that it wished to undertake extensive renovations or repairs.
- The landlord’s notice was given under section 51(1) RTA which does not require the provision of any reason. None was given in the notice. The provision in the RTA relating to termination for extensive renovations or repairs had been repealed by the time the landlord gave its termination notice. The tenant could not provide a copy of a notice terminating on the basis of extensive repairs and the landlord gave evidence that it had not issued a termination notice on these grounds. It appears that this claim was made in error.
- The landlord’s response asking the tenant to adhere to the terms of the RTA does not indicate anything any support of the tenant’s contention that the termination notice was retaliatory. It was a straightforward request to the tenant to adhere to the terms of the tenancy agreement.
- As the tenancy ended on 16 February 2026, there are three issues to consider: a. Does the termination notice comply with section 51 RTA? b. Has the tenant proved that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord? c. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?
- The landlord’s notice complies with section 51 RTA and is valid.
- The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.
- The property manager gave evidence that on her return from holiday she found that the owner sent an email directing her to issue the notice of termination. Without asking for any reasons from the owner, the property manager promptly issued the notice. The property manager confirmed at the hearing that she had no idea why she received this instruction from the landlord, acted on it without any further discussion and continued to have no knowledge of the reason the owner wanted to terminate the tenancy.
- The parties’ evidence confirms that the tenant was persistently exercising his right under the RTA to have the landlord repair the property. He may have been wrong in his assumptions about the cause of the leak, but he was genuine in his wish to have the issue remedied. His claims were neither frivolous nor vexatious. They were not designed to irritate or inconvenience the landlord. The Tribunal accepts that they were in response to the tenant’s genuine concern and discomfort.
- The evidential onus is on the landlord to show that there was a legitimate reason for the notice. While landlord does not have to provide any reason for terminating a tenancy under section 51(1) RTA, a landlord will still have a reason for doing so. Here, the landlord has been unable or unwilling to give any reason for issuing the notice. The landlord has not claimed that it was given because the tenant’s claims were frivolous or vexatious. In the absence of any further evidence from the landlord, it is reasonable for the Tribunal to draw the negative inference that the landlord simply wanted the tenant gone, more likely than not because of the tenant’s persistence in making claims about the water issue. While the landlord’s termination notice was given some months after the tenant’s application to the Tribunal, it was given immediately after the tenant had continued to complain of the water issue and had the plumber called out on Christmas day.
- For these reasons, the Tribunal is persuaded that the landlord has committed an unlawful act in issuing the termination notice.
- The issuing of the notice was intentional.
- In his claim for compensation, the tenant provided no evidence of any financial loss he had suffered as a result of having his tenancy terminated. It appears from his written submissions that he was only seeking exemplary damages in this part of his claim. The Tribunal has considered a claim for compensation but has determined that it is not appropriate for the following reasons: a. While there were some costs because the tenant had to find a new tenancy and move houses, the tenant has not provided any proof of those losses. The Tribunal lacks any evidential basis for awarding compensation for actual costs. b. The Tribunal has considered an award for general damages. As the landlord has committed the unlawful act of issuing a retaliatory notice, the impact on the tenant and his family may be considered by the Tribunal in determining the level of exemplary damages to be awarded.
- Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so considering the effect of the unlawful act, the interests of the other party, and the public interest. For completeness giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) RTA.
- 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.
- It is just that the Tribunal award exemplary damages of $2,200.00 being about one third of the maximum available for the following reasons: a. The impact on the tenant and his family have been significant. Finding new accommodation and moving house involves a significant disruption to the tenant and his family. It is also stressful. b. The tenant gave evidence that he is now paying a further $80.00 per week in rent. This may be for a superior property but it as an expense he would not have incurred were it not for the unlawful act of the landlord. c. There is a public interest in deterring landlords from issuing retaliatory notices. The right of tenants to pursue their lawful entitlements under the RTA is to be supported. d. There is no evidence that exemplary damages have been awarded against the landlord previously. Filing fee and name suppression
- As both parties have had some success in their applications, they should each bear the cost of their filing fees and both parties’ names are to be suppressed.