Published tribunal order
Tenancy Tribunal case 5361587 — Exemplary damages at Unit/Flat 2, 172 Clovelly Road, Bucklands Beach, Auckland
Published 19 February 2026 · Application 5361587
Dismissed
- Exemplary damages
Order
- The application is dismissed. Background:
- This tenancy commenced on 26 March 2025 as a fixed-term tenancy for a period of one year. It was subsequently ended by consent on 28 July 2025.
- The tenants have filed this application seeking compensation and exemplary damages totalling, they say, $6,000. They have not specified which unlawful acts the damages clearly relate to. However, I understand the allegations to be that the landlord failed to comply with the Healthy Homes Standards and failed to adequately maintain the premises.
- In support of their compensation claim, the tenants have told me the compensation is for, shoes, furniture, clothing, accessories, loss of income and moving costs.
What the applicant told me?
- The applicant states that on 5 April 2025 they discovered water seeping onto the floor. They contacted the property manager, who attended the property with a contractor. No specific issue was identified at that time, however a dehumidifier was provided and a $20 rent reduction was offered to compensate for the electricity required to operate it.
- The written communications between the landlord and the tenants at that time suggest this was accepted by the parties as a resolution.
- The tenants rasied the issue again on 10 June 2025, and advised the landlords agent that the dehumidifier was not resolving the moisture problem. The moisture affected the two bedrooms on the lower level of the property, while the upper level remained unaffected.
- In support of these claims, the tenants provided photographs of a cushion, several pairs of shoes and a couch, which appear to show mould damage. There also appears to be mould affecting some walls and windowsills.
- The also provided video and photographs that show some droplets appear in between the vinyl when pressure is applied. This demonstrates the presence of moisture, but not leaking.
- The applicants also provided a listing for the property from when it was marketed for sale in 2023, which suggested the property had building consent issues. They further provided a report from 2023, which they say was supplied to them by a prospective purchaser they later contacted during their investigations. That report records moisture ingress issues at the property.
- The applicants state they believe the moisture in the basement resulted from pre- existing issues that had not been remedied by the landlord, and that the landlord was therefore not forthcoming about the condition of the premises.
What the respondent told me?
- The respondent states they purchased the property in 2024. They say they obtained professional advice regarding the work required to remedy known issues at the property. They have provided a contractor invoice and photographs which suggest the recommended works were undertaken.
- The respondent advised they had previously operated the property as short-term accommodation. Conflicts arose with a neighbour relating to parking by the short stay guests so they decided to cease short-term letting and use the property as a residential tenancy property.
- They say they engaged a professional property manager, who asked them to complete a Healthy Homes assessment and advised them of the compliance requirements. They authorised the property manager to arrange the report.
- A compliance certificate dated 20 March 2025 has been provided. However, no supporting report has been produced and neither party is aware of one existing. The tenancy agreement is inconsistent, in some places it suggests the property was not compliant, but elsewhere contains notes stating that it was compliant. On the balance of probabilities I accept the inconsistencies are due to the filling out of the agreement by the property manager and that the report was completed and the property was compliant.
- The respondent has provided emails, text messages, and screenshots showing engagement with the issue. They say they believe the moisture was naturally occurring due to winter conditions, the proximity to the sea, and the presence of a spa pool in front of the downstairs area. They say the issue could be remedied through increased ventilation and the use of dehumidifiers.
- They state the steps they took were sufficient and that the tenants appeared satisfied with the dehumidifiers, except for concerns about the space they occupied. They further state they believe the tenants were motivated to seek an additional rent reduction and compensation. The issues I must determine are:
- Was there a leak affecting the downstairs area of the property?
- If so, did the landlord commit a breach of their obligations that would entitle the tenants to compensation and/or exemplary damages? Analysis and conclusion:
- In order to find in favour of the applicants, I must accept their contention that there was a water ingress and that this caused the mould.
- The video and photographs provided show moisture beneath the vinyl flooring. When pressure is applied, single droplets appear in some areas. This demonstrates the presence of moisture, but not leaking.
- I accept that there was some moisture in the downstairs area, however the communications between the parties suggest this was remedied by the dehumidifiers. There is nothing before me that proves, on the balance of probabilities, that this dampness was caused by moisture ingress.
- This is not to suggest the applicants are necessarily incorrect in their belief. However, they bear the burden of proof and must establish a breach and then a causal link between the breach and the loss they say they suffered. It is inherently difficult in older New Zealand homes such as this one to establish that mould results from a structural defect. Mould can naturally occur and requires ongoing management through ventilation, cleaning, and heating. The landlord suggests this was the likely cause, and it is at least a plausible explanation. The applicants have therefore not satisfied their burden of proof.
- The historic reports provided suggest there may have been past issues at the property however the landlord has provided evidence they undertook work to remedy these issues. There is nothing in the applicants submissions that convinces me that on the balance of probabilities that was not the case.
- When notified of a maintenance issue a landlord is required to inspect the issue and provide an adequate remedy if a problem is identified. The communications demonstrate the landlord’s agent engaged with the tenants, dehumidifiers were supplied, and this was initially accepted by the parties as an appropriate remedy.
- The issue arose again in June and the parties ultimately disagreed. The tenancy was then ended by mutual consent, and the tenants were given a two-week rent credit valued at $1,720.00.
- I consider that credit to be sufficient compensation for the inconvenience experienced by the tenants in these circumstances.
- While the tenants did not identify specific unlawful acts said to justify exemplary damages, I understand their position to be that the landlord breached their obligations under section 45 in that they failed to maintain the premises and failed to comply with the Healthy Homes Standards.
- As outlined above, I have found the landlord did not breach their obligations in respect of section 45. Furthermore, exemplary damages require a finding that any breach was intentional. Such a conclusion is not supported by the evidence.
- In the absence of a breach, the claim for exemplary damages cannot succeed.
- As the applicant has not been successful in this application I have not awarded the filing fee.
- I also do not consider there to be any special circumstances that would give grounds to a suppression order as requested. H Ben Fayed 19 February 2026