Published tribunal order
Tenancy Tribunal case 5347420 — Exemplary damages at 100 Kemp Road, Massey, Auckland 0614
Decided 11 Dec 2025 · Published 11 Dec 2025 · Application 5347420
- Exemplary damages
- Leaks
Order
- Patiki Investments Limited and Tandem Property Management Limited must pay [The tenant/s] $10,863.00 immediately as follows:
- The landlord must undertake work to repair the fence as set out in the quote obtained by the tenant from Jim’s Fencing dated 31 October 2025, which must be completed by 31 March 2026
- If the landlord fails to comply with Order 2 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $1,850.00. These costs may be set off against rent payable.
- The landlord must undertake work to repair the conservatory as set out in the quote obtained by the tenant from Carl Harper Maintenances Limited t/a Exceed, dated 8 October 2025, which must be completed by 31 March 2026. The rent will abate by $30.00 per week until that work is completed
- If the landlord fails to comply with Order 4 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $2,169.82. These costs may be set off against rent payable.
- Unless/ until the landlord replaces the decking timbers at the premises the rent will abate by $10.00 per week.
- Unless/ until the landlord replaces the shed at the premises, the rent will abate by $10.00 per week.
Reasons
- Both parties attended the hearing which was held by videoconference.
- An Order was made on 26 September 2025 which confirmed that at that point the issues to be decided were the tenant’s claims for compensation/ exemplary damages for the following alleged breaches of the landlord’s obligations: a. fail to repair conservatory; b. loss from leaks/ mould c. fail to repair fence/ washing line d. removal of shed and failure to reinstate e. breach of the tenant’s right to quiet enjoyment.
- It was also Ordered that: “By consent, the landlord’s existing work order with New Line Maintenance, to repair the rusted down pipe, replace the broken tile in the transition zone, check the conservatory and quote for any repairs, is to be added to with additional instructions to: a. check for leaks in the conservatory roof and joinery and note any necessary repair; b. assess the fence and the decking and make any repairs necessary to ensure they are fit for purpose.”
- Evidence provided by the landlord shows that to comply with that Order: a. one small piece of deck timber has been replaced ($59.51); b. the conservatory joints were sprayed with aerosol sealer ($105.80); c. two posts were installed so that the broken fence could lean up against them ($357.07) d. the rusted downpipe was replaced ($238.05) e. three kitchen tiles were replaced ($171.92).
- With respect to the maintenance contractors who did the work, photographs provided show that what was done to address those repair needs could not have been more minimal. The remaining deck timbers appear to be badly worn and split with remaining holes and trip hazards, aerosol “leak stop” spray is unlikely to provide a fix of any duration for the obvious structural gaps and leaks in the conservatory joinery, putting 2 posts in so the broken fence could lean up against it is barely a repair.
- I mention those matters because although that work means I do not find the landlord has breached the work Order per se, it somewhat corroborates the tenant’s complaint that throughout the tenancy, any repair/ maintenance issues raised by her have been dealt with minimally and by way of largely ineffective attempts at “patch up” rather than repair.
- Further work orders are now sought by the tenant for repair of the conservatory, fence and deck. What are the landlord’s repair and maintenance obligations?
- A landlord must provide and maintain the premises in a reasonable state of repair 1 .
- A landlord must comply with the Healthy Homes standards by the applicable compliance date 2 . The owner’s HH compliance statement acknowledges compliance date was 11 May 2022.
- If a landlord breaches those obligations, the Tribunal must consider whether the tenant should be compensated for any loss caused. That can be financial loss, loss of the utility of the premises or it may be in the form of general damages to compensate for pain and suffering or emotional distress 3 .
- Breach of any of those obligation is also an unlawful act for which exemplary damages of up to $7,200.00 may be awarded 4 . 1 S.45(1)(b) RTA 2 S.45(1)(bb) RTA 3 Eg. Birch v Otautahi Community Housing Trust [2020] NZDC 17667 (at para [35]) 4 S.45(1A) and Schedule 1A RTA.
- Exemplary damages may be awarded in addition to compensation. They are not to compensate the tenant but to punish the unlawful act. More than one award of exemplary damages should not be made for the same breach.
- The tenant has an obligation to tell the landlord about any repairs needed 5 . There is no suggestion the tenant has not met that obligation.
Has the landlord breached its maintenance and repair obligations?
- The tenant has provided in evidence some communications with the landlord sowing the landlord’s response to maintenance issues raised.
- By way of example, on 16 September 2022 the tenant reported that: a. the fence had not been fixed; b. the washing line had not been fixed c. there was a leak in the conservatory.
- On 12 May 2023, 8 months later, the landlord noted, “Following are maintenance issues that have been long outstanding, please check and let me know if I've understood each situation clearly - Bathroom: shower slider and head broken and needs to be completely fixed, shower window ledge needs new paint has already lifting - Main bedroom: broken window latch on one window, broken/ cracked glass in second window caused by Kyle who broke this when fixing latch - Conservatory: damp from roof that is leaking and needs painting - Exterior: no washing line, this was attached to the fence that had come down. Fence was fixed however it is not secure and when reattaching the washing line full it falls off from the weight of the washing. The fence is quite rotten and really needs to be replaced. Decking around house is rotten and falling in in parts.”
- On 30 August the tenant txt, “I would like to give you a 14 day notice to fix washing line, conservatory, deck and all the holes.”
- The deck and conservatory remained unrepaired until required by the Tribunal’s work Order in September 2025. The repair work carried out then was not adequate.
- The evidence satisfies me that by failing to adequately address these issues, which are discussed individually below, the landlord has breached its obligation to ensure the premises were maintained in a reasonable state of repair. 5 S.40(1)(d) RTA Conservatory
- Photographs provided by the tenant show leaking into the conservatory and very high moisture levels on the inside of the windows.
- The issue was first noted in an e-mail from the tenant to the landlord on 12 August 2020, “....I’ve just woken up and I have got a mess leaked in the conservatory can I get something to come fix it as soon as possible please...”
- The tenant complained about moisture and mould again on 13 June 2021, noting, “...this house is so wet and damp and not to add cold. It is unbelievable I have water dripping from the roof on the conservatory from how damp and wet it is. I've tried to resolve this by open windows overnight etc but it just seems to be getting worse see photos..... what topped me off is I have water damage to my dining room table and there is an mould on every single one of my dining room chairs were also shocking... the bathroom whole roof is pretty much covered in mould...” then on and 1 July 2021 “...I don’t know what tor really say but my dining room table chairs are absolutely wrecked riddled in mould...”
- Moisture ingress may have come from the gutters that had not then been adequately maintained but the photos also show significant holes and gaps in the window joinery.
- The tenant’s evidence, which I accept and which is corroborated by the photo evidence is that after those initial leak problems, she was effectively unable to use the conservatory as intended from 1 January 2023 because of the ongoing leaks and dampness. On 27 January 2023 she had again noted, “...the conservatory is leaking again its not pouring in...it is slowly dripping down the window and on the curtain side so I’ve just taken one down.”
- The property manager’s initial reply to the tenant’s concerns about the dampness and mould suggests it was the tenant’s fault for not closing off the laundry doors and using a dryer. The evidence of external moisture ingress into the property persuades me that was the probable main cause.
- I find it proved on balance that loss of the tenants’ belongings due to mould was primarily caused through failures on the landlord’s part to meet repair and HH standards obligations.
- The September Order directed that the landlord provide a copy of the current Healthy Homes assessment for the premises. The landlord provided a copy of the owner’s statement of compliance dated 11 May 2025, which is not the same thing and is not evidence of actual compliance.
- The photographs provided by the tenant prove it more likely than not that the gaps and holes in the premises and broken downpiping shown, meant that the premises did not comply with the Healthy Homes standards for draught stopping 6 or moisture ingress and drainage 7 .
- The landlord questions whether the conservatory was required to meet HH standards.
- The draft stopping standard requires that the “premises” be free from unreasonable gaps or holes. The conservatory was part of the premises.
- The moisture ingress and drainage standard requires that the “building” have an efficient drainage system. The conservatory is part of the building.
- I am not required to decide whether the conservatory should be classified as part of the main living room for the purposes of the heating standard.
- The tenant should be compensated for loss of the full use of the conservatory from 1 January 2023, which I fix at $30.00 per week.
- The tenant should also be compensated for: a. loss of her dining chairs due to mould from the leaking conservatory. Evidence of replacement value has been provided. The amount awarded is less than replacement value to allow for depreciation; b. the loss of other miscellaneous property and the impact on her use and enjoyment of the premises in having to deal with the effects of the continued leaks, dampness and mould in the premises. Photographs show the lengths the tenant went to, to try and stop the leaking and to deal with the consequences. I fix that compensation sum at $1,500.00.
- The tenant has provided a quote for substantive repair of the conservatory. I find it proved on balance that the work quoted for is necessary to bring the conservatory to a reasonable state of repair. The conservatory is an integral part of the living space at the premises, and it should be repaired properly.
- Rent should continue to abate at $30.00 per week until the repair is done Fence and washing line
- The fence fell over in mid July 2022, taking down the washing line that was mounted on it. The landlord was informed.
- After some reminders from the tenant from September 2022 and thereafter, the washing line was mounted back on the fence which could not hold its weight so 6 R.26(1) Residential Tenancies (Healthy Homes Standards) Regulations 2019 – unreasonable draughts or gaps 7 R.27(2) Residential Tenancies (Healthy Homes Standards) Regulations 2019 – effective gutters downpipes and drains required it sagged and was effectively unusable. It was noted by the landlord as needing to be fixed in May 2023. It was fixed 10 months later in March 2024.
- The “fix” was achieved by bracing the fence across to the deck, cutting off access between the edge of the deck and the fence.
- None of the attempted repairs were timely or adequate.
- As a result, the tenant was without the use of her washing line for around 18 months.
- As noted, in response to the consent Order requiring that the fence be made fit for purpose, it was not substantively repaired but leaned up against 2 new posts.
- I find that from the date of the damage until nominal compliance with the work Order, the landlord was in breach of the obligation to keep those parts of the premises in a reasonable state of repair and maintenance.
- The tenant has had the fence assessed and has provided a quote for $1,850.00 for having it properly fixed, by replacing the posts, 3 palings and capping.
- I find the work quoted for is necessary to bring the fence to a reasonable state of repair. An Order should be made for the work to be carried out.
- The tenant should be compensated for loss of use of the clothesline from Mid- July 2022 until March 2024 at $10.00 per week. Deck
- Photographs provided by the tenant as well as by the landlord show that after the minimal repair done after the September Order, by replacing around 500mm of decking timber, the deck appears in need of replacement.
- The tenant has obtained a quote for replacement of the decking timbers at $17,926.00.
- On balance I find it would be unfair to the landlord to require full replacement of all the decking timber, so no work Order is made.
- If the landlord chooses not to replace the deck, the rent should abate to recognise the compromised condition of the deck and its effect on the utility of the premises. I assess that abatement at $10.00 per week.
- By way of compensation, the same abatement should apply from 12 May 2023 when the landlord was clearly aware of the issue. Shed
- The shed blew down in January 2025. The landlord was informed on 8 January 2025. The tenant has lost use of it for storage or other purposes and the landlord did not replace it or have its remains removed from the property.
- The tenant had it removed.
- The tenant should be compensated for having to do so and for loss of use of the shed which is part of what she is paying rent for. I fix the compensation for loss of the shed at $10.00 per week from 8 January 2025, continuing unless/ until the shed is replaced.
Should Exemplary Damages be awarded?
- I have found that the landlord breached its obligation to keep the premises adequately maintained and to comply with Healthy Homes standards. The landlord has thereby committed unlawful acts.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986
- There is no doubt the breaches were intentional. The tenant kept the landlord well informed about the repairs needed at the premises.
- While the evidence shows some responsiveness to the repair and maintenance issues raised by the tenant and perhaps the property manager(s) being let down by handyman/ contractors who the property manager(s) thought had carried out repair work, it does not really provide any reasonable explanation for the delays and failures to deal with what was clearly necessary maintenance work.
- The tenant has suffered loss as a result of the landlord’s breaches. She lost use of the conservatory which is a significant part of the premises’ utility. She lost property due to mould and had to deal with mould as an ongoing problem.
- She lost the utility of a functioning washing line and had to put up with long delays in having a bedroom window fixed.
- She was left for an unreasonably log time with a fence lying flat and a deck with hazards and was left to deal with a shed that had been blown down.
- While compensation has been awarded for financial loss, the loss of enjoyment in her use of the premises, in having to regularly raise the need for repair, deal with trades people, follow up about repair work that had not been done and be a “squeaky wheel” with worries about whether that might put her tenancy at risk, though less tangible, were very considerable consequences of the landlord’s failure to meet its obligations.
- I find it would be just to make an award of exemplary damages for those breaches in addition to the compensation awarded. The breaches were ongoing, involved the separate unlawful acts of breaching repair/ maintenance obligations and meeting HH compliance obligations, each of which has a maximum award of $7,200.00.
- I award $2,500.00. Breach of Right to Quiet Enjoyment
- The tenant claims compensation and exemplary damages for what she says was harassment by the landlord in continuing to pursue her her for rent arrears that were not in fact owed.
- The evidence provided does suggest that the landlord chased up what it believed to be breaches of the tenant’s obligations with more diligence than its own breaches and I can understand the tenant’s frustration about that. Nevertheless, I find that the landlord was genuine in its belief that rent arrears were owed and the steps taken in response, do not amount to harassment for which compensation or exemplary should be awarded in addition to the other wards made.
- As the tenant has substantially succeeded with her claims, I reimburse the filing fee.