What was the outcome of Tenancy Tribunal case 5375423?

The tribunal order states: Phil & Sue Tomlinson must pay Dean Paul Hartner $500.00 immediately, being

How much money was awarded in case 5375423?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5375423?

The primary dispute was 14-day notice. Related themes: State of repair, Healthy homes, Exemplary damages, Harassment, Mould, Leaks.

Where can I read the official tribunal order for case 5375423?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13249935-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5375423?

The tribunal order states: Phil & Sue Tomlinson must pay Dean Paul Hartner $500.00 immediately, being

How much money was awarded in case 5375423?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5375423?

The primary dispute was 14-day notice. Related themes: State of repair, Healthy homes, Exemplary damages, Harassment, Mould, Leaks.

Where can I read the official tribunal order for case 5375423?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13249935-Tribunal_Order.pdf.

78 Spindler Road, Wellsford, RD 2, Wellsford 0972 Tenancy Tribunal Case 5375423 — 14-day notice

Order

Phil & Sue Tomlinson must pay Dean Paul Hartner $500.00 immediately, being exemplary damages for failure to lodge the tenants bond with the Bond Centre.
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant against the landlord.
Both parties appeared at the hearing today, the landlords attended in person, the tenant appeared by telephone at his request.
I note that the original application filed by the tenant related to a breach of his quiet enjoyment and a retaliatory notice. However, the tenant has amended the application, and both parties requested that the expanded claims be considered today, so they were.

BACKGROUND

The parties entered into a periodic tenancy agreement, commencing on 5 October 2024.
The premises are rural, a working farm. The landlord lives on the farm, and the tenancy premises were next to the farm barn. The premises are supplied by a water tank.
The tenant states that on our about 12 October 2025 he raised concerns with the landlord over a security camera the landlord installed on the barn, the tenant was concerned the camera would capture his front door, and issued the landlord a 14-day notice in relation to that.
On 14 October 2026, the landlord issued a termination notice, terminating the tenancy as of 26 November 2025. The reason given was because the landlord required the premises for use within 90 days as a place of residence for a family member.
The tenant vacated the premises after the termination end date, because he was had difficulties in finding an alternate property.

TENANTS CLAIMS

At the hearing, Mr Hartner confirmed his claims are as follows: a. Breach of quiet enjoyment b. Retaliatory notice c. Failure to lodge bond d. Maintenance e. Healthy Homes Compliance f. Potable water failure g. Shared electricity. h. Interference with mail

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (Mr Hartner), establish his claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
It is the applicant who must prove their case. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
The obligation is not on the respondent, that is the Tomlinsons, they do not need to prove anything, the onus is only on the applicant, Mr Harner, to prove his case. If Mr Hartner does not prove his case, which includes providing sufficient evidence showing a breach, then the claim must be dismissed.

ANALYSIS

I will now consider each claim in return. Claim 1 – Quiet enjoyment
The tenant’s position is that the landlords have breached his quiet enjoyment, because the landlord had a camera aimed at his car parking area, so it would capture anyone who came and went at his property.
The landlord agrees that the tenant had confronted them about the camera, and gave a 14 day notice to have it moved. However, the landlord states the tenant was well aware the camera was present, and it had been there for some 11 months. The Landlords say that the camera captured a common area. The Landlords explained that the camera picks up a driveway which also services the drive to the garage. Some of the garage is used by the tenant, but other bays in the garage are the landlords, and have a range of farm equipment owned by the Landlords. Analysis
Section 38 of the RTA confirms that tenants are entitled to quiet enjoyment of the premises. If the landlord breaches that expectation in circumstances that amount to harassment, then the Tribunal could order exemplary damages to be paid by the landlord.
In this case, Mr Hartner says that has quite enjoyment has been breached, because of a security camera that the landlord installed on the barn. The evidence is that the barn contained a wide range of landlord belongings, and farm equipment. It was not a part of the Tenancy, and because it was some distance from the landlord’s dwelling, security issues arise. The landlord advised that about 11 months prior to the issues being raised by Mr Hartner, they installed a security camera, and that Mr Hartner was well aware of that fact. I have been provided an image showing what the camera captured, which was primarily the driveway, and I accept it would also capture comings and goings at the Tenancy. The camera was not focused on the dwelling, rather it was focused on the driveway, and would capture anybody driving up to, or walking toward the barn. Taking into consideration this is a rural property, I have no difficulty at all in accepting that the landlord had genuine reasons for installing the security system, to protect the farm equipment and landlord property in the barn. I do not consider it likely that the camera was installed to surveil the tenant. The area captured was primarily shared areas of the property.
Again, noting that the area captured by the camera was an area of common use, it could not be said that the tenant would have a strong privacy expectation in what amounts to areas used by both the landlord and tenant.
The tenant has not convinced me that the camera was a breach of his reasonable quiet enjoyment expectations; to that extent this claim cannot succeed. Claim 2 – Retaliatory notice
The tenant’s position is that the termination notice was given for retaliatory reasons, based on his complaints about the camera.
The landlord states that the tenancy was required for her daughter to live in with her daughter and five pets. The decision to terminate Mr Hartner’s tenancy was to allow somewhere for their daughter to move into, and they are moving into the tenancy at the end of this week. The landlord notes that around the time notice was given, a container for his daughter was delivered at the property. Analysis
Section 54 of the Residential Tenancies Act 1986 holds that the Tribunal may declare a notice to terminate a tenancy of no effect, and retaliatory if: In giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power , authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right.
A notice of termination given for genuine and fair reasons will not be considered retaliatory.
In this case, the termination notice was given on the basis that the landlord wished to have their daughter move into the tenancy premises. The landlords explained the motivation for that decision at the hearing, which I consider is consistent with the limited information on file, including contemporaneous communications with the tenant. I found the landlords to be honest witnesses; I had no impression that they were not telling me the truth when they said why the termination had been issued. In short, I accept that the primary reason that the tenancy was terminated was to provide somewhere for the landlord’s daughter to live.
I have also considered whether the termination could have been based even in part on the complaints for Mr Hartner around the security camera, but I consider that situation unlikely. While there was a coincidence in time between Mr Hartner’s complaints regarding the camera and the termination notice, more is required than such a coincidence. Furthermore, in my view, the issues in relation to the security camera were not of great significance in the scheme of things, and I did not get the impression that the landlords were particularly exercised about the security camera concerns. They believe they had good reason to have the cameras, noting the camera had been there for almost a year prior. It seems unlikely that the termination would have been motivated even in part, around the security camera concerns.
This claim has not been established. Claim 3 – Failure to lodge bond
The tenant says that the bond was not lodged.
The landlord says that it was WINZ that paid the bond, but the landlord agrees that it was lodged, but that they did not realise it was a legal requirement to lodge the bond. The bond was ultimately used to cover the last two weeks of rent. Analysis
Mr Hartner claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, for failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond following the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for failing to lodge the bond, is $1,500.00.
In this case, there is no dispute that the bond was paid, and not lodged in the Bond Centre. In my view, it is well recognised that bonds must be paid into the Bond Centre, it is a generally understood expectation with landlords in New Zealand.
Taking into consideration the section 109 factors, I consider it more likely than not that the landlord’s decision to retain the bond payment was intentional. The effect for the tenant is that his bond was not kept securely in the Bond Centre in the event of a dispute at the end of the tenancy. There are strong interests for tenants and landlords, in the public generally, that the bond system be strong and compliant, which requires that bonds be lodged when they are received, or at least within 23 working days. I consider it would be just to make an order of exemplary damages in this case.
Have determined that exemplary damages at 1/3 of the maximum would be indicated. There is no evidence before the Tribunal that these landlords have a history of failing to lodge bonds, and I am also minded that the landlords agreed to apportion the bond to rent due, so this is not a case where there has been any real dispute around the bond being released. I therefore order exemplary damages of $500 for failure to lodge the bond. Claim 4 - Maintenance
The tenant says that the premises were not properly maintained. There was considerable water that came off the roof, but if the windows were open, it would “flood the kitchen out”, so the window needed to be closed during the rain. The tenant says that the gutter had holes in it.
The tenant said that the water was not drinkable, so he would need to truck water in. There was no running cold water in the summer, because the sun would heat the pipes in the roof, so he would need the cold tap to run until cold water came through.
The landlord said that there is a kitchen window that is a bi-fold. When there is heavy rain water will come inside the window
The landlord disputes that the water was not potable. The landlord states that the plumbing pipes run through the ceiling. Otherwise, the tenant has provided photographs which are for exterior water (not potable water). The landlord states there are double filtration systems for the potable water. The landlord also states that during the spring, they would waterblast the gutters. Further, every 2 to 3 years the water tank is cleaned. Otherwise there is a 32,000 litre water tank which then feeds a 1,000 litre header water tank. It is unavoidable that when the pipe from the header tank travels through the ceiling, it will heat up.
The landlord also states that the premises have a wet back water heating system.
In response, Mr Hartner said that he was not informed that he could not have a fire that was adequate enough to heat the house, and not to overboil the water in the cylinder at the same time.
Mr Hartner says that the water would come into the window even when the window was closed. Analysis
Section 45 of the RTA set out the landlords responsibilities, and that includes the obligation to “maintain the premises in a reasonable state or repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes”.
In this case the tenant has raised issues in relation to: a. Water coming into the kitchen window. b. Holes in gutters. c. Issues with the wet back water heater.
The tenant also raised issues around the water, but I will deal with that in the specific water claim below.
I have found this particular claim difficult, because I do not wish to discount Mr Hartner’s experiences; but there has simply been insufficient evidence presented supporting a breach of maintenance obligations.
As far as the kitchen window and the gutters are concerned, I do not have photographic evidence showing issues with those two areas, I have the tenants statement that water would come through the window, but the landlord statement is that this would be an issue only if the windows were open during rain. I can see no reason to prefer one statement over the other. In relation to the gutters, the tenants evidence was that there were holes in the gutter, but the landlords evidence is that the gutters are regularly water blasted, to ensure that the water collected for the tank, is in good order. Again I don’t have any particular reason to favour one oral statement over the other.
To the wetback heater, the evidence is that the fire was effective in heating up the water, to the extent that the water in the cylinder would get too hot, and vent through the roof if it was boiling. To a degree, the wetback heating the water from the fire is precisely what it was intended to do, but what I do not have is evidence to show that how the system has been installed was inadequate, or that particular maintenance was required. To put that another way, I have not been provided with evidence to show that there is a fault with the wet back, that the landlord needed to maintain.
While I have some reservation over the claim for a lack of maintenance, overall I must conclude that the tenant has not provided sufficient evidence establishing a breach. Claim 5 – Healthy Homes Compliance
Mr Hartner says that the back bedroom was accessed via a hallway without lighting. The room was cold in the winter and not habitable, the tenant says it was not insulated on the walls. The ceiling was only tin.
In the garage, which was internal access, that did not have a full wall, so there would be fumes coming from the landlords adjoining garage. The tenant said that he did not raise this with the landlord for fear of getting a termination notice.
The landlord says that the second bedroom was used by the tenant for storage, and the landlord says this is insulated. The landlord says that the exterior walls are insulated. The landlord states that the ceiling is lined with ply, and has insulation above that. The landlord disputes that the hallway was not lighted. Analysis
What is notable about this claim, is that the evidence provided by the parties is very divergent. For example the tenant states that the hallway had no lighting, but the landlord states there were lights and power points in the hallway. The tenant also says that the bedroom was not insulated, but the landlord says it was, providing specific detail around what insulation was present.
The tenant has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards. The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage. In this case, the tenant submits that the bedroom was not insulated.
The Insulation standard requires that the premises have qualifying insulation in the ceiling cavity, and under the floor if the floor is a suspended floor. To be considered ‘qualifying insulation’ the insulation must meet a minimum R value. The insulation must also be in a reasonable condition. The HHS does provide an exemption to the requirement for insulation in specific circumstances. Overall, I find that Mr Hartner has not presented sufficient evidence to prove that the landlords have breached the insulation standard.
As far as the garage is concerned, I do not consider that area would fall within the HHS. The insulation requirements relate to domestic living spaces, which is defined as an interior space of a building normally associated with domestic living, which would not be the situation for a garage. I am not persuaded that the garage would be part of the residential premises for which the draught- stopping standard.
The tenant has not established that there has been a breach of the landlord’s HHS obligations. Claim 6 – Potable water
The tenant states that when he first moved into the premises, and would drink the water, he would get stomach aches, and further his dogs would vomit. The tenant does not consider it would be reasonable just to use the hot water and put the water in the fridge, so he would bring in drinking water to avoid bacterial ingestion.
The landlord has addressed the water issues above, noting that they have the same system in their modern house. Analysis
The premises are rural, and serviced by water tanks. There is nothing at all unusual with that, it is a very common situation. At these premises there were two water supplies, one for portable water, the other for exterior, and non-consumption use.
As far as the portable water supply is concerned, Mr Hartner said that when he moved in, it made him feel unwell, and his dogs vomited, but it is difficult to know what to make of that. No medical evidence has been presented, and neither is there any test results or other technical information regarding the water supply. The landlord explained what they do to ensure that the tank water was in good condition, my overall impression was that the landlord did take care to ensure the water was safe.
The tenant also raised concerns that the cold water would come from the header tank, through the ceiling, and it would heat up, meaning he would need to run the cold water for a period of time, for the cooler water to come through the tap. The tenant has not pointed to any legal obligation which has been breached here. I accept that when it is hot outside, it may take a while for the water to cool down, but I cannot see any problem with that. Again, that is the nature of a non-reticulated water supply, and particularly one supplied from a header tank. Claim 7 – Electricity.
Mr Hartner says that when he moved in there was no check meter, and his power bill was large. Mr Hartner says that the metre also supplied the landlord’s barn which had two freezers. The landlord offered to put in a check meter, and when the meter was finally put in he kept getting the power bills for the barn. Later, the meters were changed.
The landlord says that there it has not previously been an issue with how power has been split and paid for. The landlord says that Mr Hartner did not make all payments toward power, but the landlord has waived those charges. Given Mr Hartner’s concerns, the landlord had the meters changed. The landlord notes that the first account for the tenancy only was with Mercury, and the bill after that went to Genesis. Analysis
The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities. Section 39 of the RTA is a provision which sets out the landlord and tenant’s “responsibility for outgoings”. Subsection 3 records: The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.
The effect of section 39(3) is that the tenant is only liable for outgoings in respect of the premises that are “exclusively attributable” to his specific tenancy.
I note the District Court decision of Graeme Geraghty Leonie Jones v Raui [2019] NZDC 3813, in which Judge de Ridder needed to consider a case where there was one power meter for both a main house and a semi- detached flat (the tenancy). The Tribunal had dismissed the claim for power charges because there was no separate meter to be able to determine what the power consumption to the tenancy was with precision. The District Court did not agree with that approach and stated in the decision: [23] It is clear from the comments of the Adjudicator recorded at [18] above that the adjudicator took a strict legal approach and applied a strict application of the words “exclusively attributable” used in s 39(3) of the Act. There is an argument that whilst the strict legal application of s 39(3) means that Ms Raui does not have to pay for any of her power use, an application of the principle of determining the matter according to the substantial merits and justice of the case, and considering whether that, “... strict application of the law gives rise to a fair result...,” might arguably lead to a result where Ms Raui should be paying something for her power and not, effectively, receiving it for free. Also by requiring the landlord to pay for the power clearly used by Ms Raui, the benefit of rental income from the property to the landlord is significantly reduced by the amount of the order. [24] In all the circumstances, where there is an argument that s 85 might apply to produce a different result and that provision has not been considered, then that could be said to amount to a procedural error which in turn has possibly resulted in a substantial wrong or miscarriage of justice.
Section 85 is a provision in the RTA which relates to decision making of the Tribunal, and confirms that the Tribunal should look to a fair resolution of the dispute, taking into account substantial merits and justice, not necessarily strict legal rights and technicalities: 85 Manner in which jurisdiction is to be exercised (1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
What that means, is that the Tribunal could (if not should) look to an approach which deals with the power charges on a fair basis.
In this case, toward the end of the tenancy when Mr Hartner was dissatisfied with the split account arrangement, the landlord had another meter installed to supply the barn only. I have been provided with an invoice from 10 March 2025 from Mercury Energy, that related to the power use between 5 February 2025, and 5 March 2025. That does not appear to be an estimated reading, and the monthly power bill was $136.31. That is a helpful figure, because it represents power that is only used by the Tenancy, and over warmer months. But when I consider the power charges raised by the landlord, on the split basis with the barn, the charges are materially similar.
Taking an approach looking at the substantive merits and justice, it seems to me that the charges that the landlord has raised, would fairly represent power charges exclusively attributable to Mr Hartner’s occupation of the premises, so I decline to make any order around the power charges. Claim 8 – Mail interference
The tenant states that his address was 78A, and the landlord removed the ‘A’, so the landlord needed to change his address to an address in Tobuk Road. The tenant considers that this has been an unreasonable interference with his mail.
The landlord agrees there were two letter boxes side by side, and states a bird has nested in their letter box (and has for years), and the Postie just puts both sets of mail in the one letterbox. The landlord says they did not remove the ‘A’, it fell off, they could not find it but, the outline is still well visible on the box.
In conclusion, Mr Hartner said he was not receiving his mail. He did not think the landlords were taking his mail, he was simply not receiving it, he suspects, because the ‘A’ was missing. Analysis
I am not entirely certain I can see any issues with the mail box.
The evidence is that there were two mailboxes side-by-side, one mailbox was 78 and the other 78A (the tenancy mail box).
It seems that for the past few years, a Starling has nested in the landlord’s mailbox, that is 78. Because of that, that mailbox became, in effect, out of commission, and so the mail would be delivered for both addresses into the 78A mail box. My impression is that the reason all mail went into the one mailbox had nothing to do with the ‘A’ falling off, but rather because of the nesting activity in the neighbouring mailbox.
What then happened, is that on some occasions the landlord would hand deliver the mail to the tenant. I cannot see any unlawfulness in that, but I am not persuaded that the tenant has shown any illegal activity, or interference with their mail, as that concept would be known.
This claim has not been established.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has applied for name suppression. I find that the tenant has not been wholly or substantially successful, so name suppression is declined.

Tenancy Tribunal case 5375423 — 14-day notice at 78 Spindler Road, Wellsford, RD 2, Wellsford 0972

At a glance

Tenancy Tribunal case 5375423 — 14-day notice at 78 Spindler Road, Wellsford, RD 2, Wellsford 0972

At a glance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CLAIMS

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CLAIMS

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions