Tenantcheck Insights · Case study
Tenancy Tribunal case 5442968 — Mould at 76A Verbena Road, Birkdale, Auckland 0626
Published 4 June 2026 · Application 5442968
Landlord favoured
- Mould
- State of repair
- Smoke alarms
- Cleanliness
- Healthy homes
- Exemplary damages
- Leaks
At a glance
Key facts from the published tribunal order.
Outcome
Landlord favoured
From published order
Location
Auckland
Tribunal region
Adjudicator
J Northwood
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.
Order
- The landlord and tenant applications are dismissed.
Reasons
- Both parties attended the hearing. Background:
- This is a tenant application and a cross application from the landlord. This was a long term tenancy that commenced on 5 May 2010. The landlord had served the tenant with a 90-day notice to terminate on 16 January 2026 with the end date being 15 April 2026.
- On 11 February 2026, the tenant filed her application with the Tenancy Services claiming the following: -Exemplary damages for landlord’s breach of the Residential Tenancies Act 1986 (RTA). -Retaliatory Notice. -Failure to Maintain the property. -Potentially a work order.
- The landlord essentially filed a claim to refute the claims made by the tenant and to seek to recover the cost of the back steps that the tenant removed from the property without his knowledge or consent.
- What is clear from the hearing is that the working relationship between the landlord and tenant has been broken.
- The tenancy should have ended now due to the time that has lapsed since the hearing and I apologise to the parties for the time it has taken. Standard of Proof:
- As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenant, and the landlord) to establish their claims “on the balance of probabilities.” That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
- As noted 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 applicants fail 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. Landlord’s claim for replacement steps:
- The landlord claims that the tenant has removed and replaced some steps at the property. The tenant says the steps were rotten and needed to be replaced. The landlord said the tenant did not advise him that there was a problem with the steps. Furthermore, that she should not have replaced them without consent.
- For a landlord to succeed in a claim for damages to the steps , it is essential that they provide evidence to support their claim. The Tribunal must be satisfied, on the balance of probabilities, that the damage occurred during the tenancy, that it was caused by the tenant (or someone the tenant is responsible for), and that it is more than fair wear and tear. Evidence can include photographs, inspection reports, invoices. In this case, the landlord has not provided any supporting evidence. Without such proof, the Tribunal cannot grant an order for damages to replace the steps.
- I am dismissing the landlords claim for cost of replacing the steps. Tenants’ claims:
- Mary Anne Noble claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide the premises in a reasonable state of cleanliness, provide, and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health, and safety.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- The tenant has raised a number of concerns, including rotting steps, mould in the bathroom and bedrooms, issues with wiring, a leaking outside tap, and an allegation that a water pipe running down the driveway is illegal.
- The tenant provided a few photos of marks on the walls which she said is evidence of mould and an outside tap, and a pipe running along the driveway, and old looking hanging light fittings and back steps.
- The tenant says the photos show that the light fittings were rusty and unsafe, that there was black mould in the house causing a health hazard, and that the water pipe on the driveway was inadequate and unsanitary.
- Furthermore, she says the wiring was faulty and some of the light switches would give her a shock, and the guttering leaked causing the steps to be unsafe.
- However, no supporting evidence has been provided, such as Healthy Homes reports or expert assessments. The landlord has stated that he does the minor repairs to the property but calls in experts when the work is more complex.
- The landlord responded to the claims that the water pipe running down the driveway was unsanitary and illegal. The landlord said about 15 years ago the copper water pipe that was under the concrete drive burst. The driveway is shared between three properties. A qualified plumber was contracted to carry out the work. A plastic water pipe above ground was installed because to put the pipe underground would entail the shared concrete driveway being broken up and replaced. The landlord said the work was carried out by a qualified tradesperson and the pipe has not caused any problems to his knowledge since installation.
- The landlord says the steps are concrete steps and are safe. The tenant had her son remove one or more steps and replaced them with wooden ones. The landlord sought these wooden steps be replaced with concrete ones that the tenant had unilaterally removed.
- The landlord concedes that the bathroom fan is “old and barely works” but the tenant has never complained to him about it.
- The landlord said that he had maintained the property, which was built in the 1980’s. The landlord purchased the property in 1991 and lived in it for a number of years. The landlord said he has completed underfloor insulation and a moisture barrier. There are “bats” (insulation) in the ceiling, a heater, rangehood and extractor fans have been installed.
- The landlord also claims that many of these issues were not brought to his attention during the tenancy. Under section 40(1)(d) of the Residential Tenancies Act 1986, tenants are required to promptly notify the landlord when repairs or maintenance are needed.
- The tenant has not provided proof that she complained of the issues with the property . Without evidence that these issues were reported, and in the absence of independent verification, I am unable to make findings in favour of the tenant Retaliatory Notice:
- The landlord gave the tenant a notice ending the tenancy on 16 January 2026. The tenant claims the notice is 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) Residential Tenancies Act 1986.
- 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 Residential Tenancies Act 1986.
- The tenant claims that the landlord’s 90-day notice to terminate the tenancy was retaliatory, arising out a meeting at the property about repainting the exterior of the property. Under section 51(1)(d) of the Residential Tenancies Act 1986, a landlord may terminate a periodic tenancy by giving at least 90 days’ written notice and is not required to provide a reason for the termination. The right to issue a 90-day notice is not, in itself, evidence of a retaliatory motive.
- For a notice to be deemed retaliatory under section 54 of the Act, there must be credible evidence that the landlord was motivated by the tenant’s exercise of their rights or by a complaint made by the tenant.
- In this case the landlord and Mr Lance Tweedle gave evidence that they went to the property and remained outside at all times. They were on the property to look at what was required for the water blasting and repainting of the exterior of the property.
- The tenant says the landlord was abusive and rude and came to the property unannounced. The landlord and his witness say the tenant followed them around, interfering with their inspection. The tenant refused to allow her water to be used to do the proposed water blasting, despite an offer to refund the cost of the water usage.
- Both the landlord and Mr Tweedle claim that at the meeting the tenant said, “she was moving out.”
- After the altercation, the landlord decided that he needed to get the exterior painted and attend to any maintenance required. The rent was very low, but the tenant told the landlord that she could not afford any more in rent. The landlord felt that he was subsiding the tenant’s lifestyle by keeping the rent below market rental prices for the area.
- The landlord was concerned that the painters would have to endure confrontation when they sought to carry out work on the property. As the tenant had said that she was leaving, the landlord decided to issue the 90 day notice and thereby ensure a specific date to work towards to make arrangement for the work to be carried out.
- I have not seen sufficient evidence to establish that the landlord’s primary motivation for issuing the notice was retaliation. The landlord was entitled to issue a 90-day notice without providing a reason, and there is no persuasive evidence before me that the notice was given for a retaliatory purpose. The claim is therefore dismissed. Standard of evidence:
- I have considered all the evidence provided by the landlord and the tenant in their applications and in the hearing. I have also taken on board the evidence of Mr Lance Tweedle.
- Both parties have filed applications and made a number of claims against each other. However, neither party has provided supporting evidence such as Healthy Homes reports, expert opinions from tradespeople, or invoices for the cost of repairs.
- The landlord states that many of the tenant’s complaints were not brought to his attention during the tenancy. It is a tenant’s responsibility under section 40(1)(d) of the Residential Tenancies Act 1986 to promptly notify the landlord when repairs or maintenance are required.
- A tenant cannot reasonably expect the landlord to address issues that have not been reported. In the absence of sufficient evidence from either party, and given the lack of communication regarding the alleged issues, I am not persuaded that either party has established their claims to the required standard.
- This approach is consistent with the Tribunal’s general practice and the standard of proof required in civil proceedings. Each applicant is required to establish their claims to the civil law standard of proof, on the balance of probabilities.
- While I accept that there maybe merit in the claims each party is making, but unless the evidence is of the required standard I cannot make any adverse findings. Work Orders:
- The tenant seeks that the Tribunal issue a work order to the landlord.
- Before the Tribunal can make a work order, it must be satisfied that the work required is clearly identified and supported by sufficient evidence. Section 78(1)(e) of the Residential Tenancies Act 1986 allows the Tribunal to make a work order, but the order must specify the exact nature and extent of the work to be carried out.
- In this case, the tenant has requested a work order but has not provided clear details or evidence about what specific work is needed. The Tribunal cannot make a general or unspecified work order; the work must be described in enough detail so that both parties understand what is required and so the order can be enforced if necessary.
- Without this level of detail and supporting evidence, the Tribunal is unable to make a work order. Landlord coming to the property without consent or notice:
- The tenant alleges that the landlord has entered the premises without proper notice or consent. Under section 48 of the Residential Tenancies Act 1986, it is an unlawful act for a landlord to enter the premises other than as permitted by the Act.
- The Act requires the landlord to provide the tenant with the required notice or obtain the tenant’s consent before entering, except in cases of emergency.
- For the Tribunal to make a finding of unlawful entry, the tenant must provide sufficient and credible evidence, such as specific dates, times, and details of the alleged entries.
- In this case, as only one incident has been described and no further supporting evidence has been provided for other alleged occasions, I am not satisfied that there is sufficient proof to establish a pattern of unlawful entry by the landlord. Failing to provide healthy Homes Statement:
- This tenancy has been ongoing for 16 years.
- The tenant now seeks to hold the landlord accountable under the current Residential Tenancies Act provisions, including the requirement to provide a Healthy Homes certificate.
- However, the Healthy Homes Standards and associated requirements, such as providing a statement or certificate of compliance, only apply from the dates set out in the legislation and regulations.
- The landlord’s obligations depend on when the tenancy commenced and when the relevant standards came into force. As the tenancy began before the Healthy Homes Standards applied, the landlord is only required to comply with those standards from the applicable compliance date, and only if the tenant requests information or a statement as required by the Act.
- There is no obligation for the landlord to have provided a Healthy Homes certificate before the standards became applicable, or if the tenant did not request one. The tenant has not provided any evidence that she requested a Healthy Homes statement for the property.
- In the absence of a request from the tenant, and where the landlord has otherwise complied with the law as it applied at the relevant times, I am not satisfied that there has been a breach of the Healthy Homes requirements.
- Given my findings I am not awarding compensation or exemplary damages to either party.
- I am dismissing all the claims made by the tenant and the landlord.
- As neither party has been successful, I am not reimbursing the filing fees nor granting suppression of their names and details.
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s2016, s40(1), s45, s45(1A), s48, s51(1), s54, s54(1), s54(2), s78(1), s90
Key findings
- Dispute theme: state of repair
- Dispute theme: smoke alarms
- Dispute theme: cleaning
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5442968?
The tribunal order states: The landlord and tenant applications are dismissed.
How much money was awarded in case 5442968?
Verified claim lines are listed on this page.
What type of tenancy dispute was case 5442968?
The primary dispute was Mould. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Leaks.
Where can I read the official tribunal order for case 5442968?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13695701-Tenancy_Tribunal_Order.pdf.