Tenantcheck Insights · Case study
Tenancy Tribunal case 5470827 — Tenancy dispute at 4A Lovelock Avenue, North Dunedin, Dunedin 9016
Decided 10 June 2026 · Published 10 June 2026 · Application 5470827
Tenant favoured
- Filing Fee
- Leaks
- Mould
- Rent arrears
- State of repair
At a glance
Key facts from the published tribunal order.
Outcome
Tenant favoured
From published order
Location
Dunedin
Tribunal region
Adjudicator
J Wilson
Dispute themes
Award balance
Gross awards, any bond applied per the order, and the remaining balance payable.
- Gross award
- $4,778.00
- Total balance for Landlord to pay Tenant
- $4,778.00
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
| Claim | Landlord | Tenant | Reason |
|---|---|---|---|
| Rent abatement | $4,750.00 | Rent abatement | |
| Filing fee reimbursement | $28.00 | Filing fee reimbursement | |
| Net award | $4,778.00 | ||
| Bond | $3,800.00 | ||
| Total payable by Landlord to Tenant | $4,778.00 |
Claims and awards for application 5470827 — net $4,778.00 NZD. Verify on MoJ.
Rent abatement
- Amount
- $4,750.00
- Awarded to
- Tenant
- Reason
- Rent abatement
Filing fee reimbursement
- Amount
- $28.00
- Awarded to
- Tenant
- Reason
- Filing fee reimbursement
Net award
Tenant $4,778.00
Bond
Tenant $3,800.00
Total payable by Landlord to Tenant
Tenant $4,778.00
Claim types — money lines allowed on this order
Order
- The tenancy of Briar Elissa Roden, Emily Kate Lovelock, Layla May Brooks, Anna Grace Corthell and Olivia Grace Hawkes at 4A Lovelock Avenue, North Dunedin, Dunedin 9016 is terminated, and possession is granted to Edinburgh Realty Ltd As Agent For Tania & Colin Lawry, on 6 February 2026.
- Edinburgh Realty Ltd As Agent For Tania & Colin Lawry must pay Briar Elissa Roden, Emily Kate Lovelock, Layla May Brooks, Anna Grace Corthell and Olivia Grace Hawkes $4,778.00 immediately, calculated as shown in the table below:
- The Bond Centre is to pay the bond of $3,800.00 (BN-25090873) to Briar Elissa Roden, Emily Kate Lovelock, Layla May Brooks, Anna Grace Corthell and Olivia Grace Hawkes immediately.
- The application by Edinburgh Realty Limited as agent for Tania and Colin Lawry for rent arrears of $8,685.00 is dismissed.
Reasons
- Five tenants and their lawyer and the landlord all attended the hearing.
- On 18/3/2026 the landlord sought rent arrears.
- Following an adjournment the tenants on 16/4/2026 filed an application for termination of the tenancy under section 59, refund of their bond of $3,800.00 and rebate of rent of $4,750.00.
- The tenancy was for a fixed term from 1/1/2026 to 31/12/2026 at $950.00 rent a week.
Were the premises uninhabitable?
- The submissions for the tenants rely on the fact that the premises were uninhabitable from the beginning of the tenancy due to the discovery of mould and water damage when contractors lifted lino in the bathroom and kitchen meaning these rooms were unusable.
- As an alternative the submissions rely on the doctrine of frustration because the landlord breached their obligations under section 45 by failing to provide the premises in a reasonable condition, meaning the contract between the parties was void.
- Following correspondence with the landlord in late January and due to the uncertainty of when they would be able to move back into the premises, the tenants gave two days notice on 4/2/2026 to terminate the tenancy.
- The tenants submitted that despite the offer of alternative temporary accommodation from the landlord they did not believe the premises were likely to remain fit for habitation for the term of their tenancy after the remedial work undertaken by the landlord because the cause of the water ingress had not been determined.
- In support of their position the tenants relied on evidence from a retired civil engineer who provided evidence at the hearing based on his “desk top” review of documents relating to the premises from the Local Authority.
- The opinion of the witness was that there were four potential sources for the interior water damage along the bottom plate of the west boundary wall. a. First through the cantilever retaining wall that backed onto the carpark. b. Second surface water from the car park area. c. Third through the exterior plaster/paint finish or the second floor lower window flashings d. Fourth from interior warm moist air reaching a dew point when in contact with a cold zone creating wet surfaces inside walls and framing.
- The witness did not believe from his examination of the correspondence that the cause of the ingress was known, despite the remedial work.
- On the other hand, while agreeing that the premises had initially been uninhabitable the landlord suggested this was not the situation from 18/2/2026 when the work had been completed.
- The landlord suggested that the owner had spent over $38,000.00 in remediation and upgrading carpets and vinyl.
- The landlord claimed rent arrears of $8,685.00 from 5/2/ to 5/6/2026, but did not charge any rent for the first five weeks of the tenancy. Law
- Under section 45(1)(b) a landlord must provide and maintain the premises in a reasonable state of 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.
- Section 59 Destruction of premises (1) Where, otherwise than as a result of a breach of the tenancy agreement (whether for a fixed-term tenancy or a periodic tenancy), the premises are destroyed, or are so seriously damaged as to be uninhabitable, — (a) the rent shall abate accordingly; and (b) either party may give notice to the other terminating the tenancy. (2) Where a landlord gives notice of termination under subsection (1), the period of notice shall be not less than 7 days. (3) Where a tenant gives notice of termination under subsection (1), the period of notice shall be not less than 2 days. (4) Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable, — (a) the rent shall abate accordingly; and (b) either party may apply to the Tribunal for an order terminating the tenancy, and the Tribunal may make such an order if it is satisfied that it would be unreasonable to require the landlord to reinstate the property or (as the case may require) to require the tenant to continue with the tenancy albeit at a reduced rent. (5) This section does not apply in relation to damage that is contamination by a contaminant if regulations prescribe a relevant method of testing for, and a relevant maximum inhabitable level of, that contaminant (but see section 59B). Discussion
- Before the Christchurch earthquakes in 2010/11 the Tribunal rarely considered cases under section 59. Since then, the Tribunal has the guidance of District Court case law as mentioned below.
- The principles which emerge from the case law can be summarised as follows: • Whether premises are uninhabitable will be decided on a case-by-case basis, there is no statutory definition or test of uninhabitability. • The Tribunal will want to know what damage was caused to the premises and the effects on the tenant. • In making its finding on uninhabitability, the Tribunal should take a liberal approach. • Uninhabitability should be assessed in the light of prevailing conditions and expectations of the particular community at the particular time. • If services such as water, sewerage and electricity are cut off the premises will probably be considered uninhabitable for the period the services are unavailable. • The Tribunal must have regard to the personal circumstances of the tenants. Are they young and/or robust and better able to cope with what has happened? • In some cases, the Tribunal will need to decide whether it would be unreasonable to require the landlord to reinstate the property or to require the tenant to continue with the tenancy even at a reduced rent. • If the premises are uninhabitable but the tenancy continues, a 50% rent abatement is often considered reasonable, although the individual circumstances of the parties might mean that the Tribunal sets a higher or lower amount by which the rent should abate.
- There are three issues for the Tribunal to determine in this case. a. Were the premises uninhabitable? b. If the premises were uninhabitable by how much should the rent abate? c. Was the contract frustrated?
- I will deal with the last issue first.
Does frustration of contract apply?
- In The Property Boss Ltd v Brooks Christchurch TT 111/1473/CH the doctrine of frustration of contract was rejected as applying in cases of whether premises were uninhabitable because section 59 is a complete and exclusive solution to the issue.
- The Act precludes the possibility of terminating a tenancy on the grounds of frustration. Section 50 provides that residential tenancies under the Act, except for sub-tenancies under section 57, may only be terminated in the ways set out in that section. The doctrine of frustration is not included in section 50.
- Based on case law I find the contract was not void because of the failure to provide the premises in a reasonable state of repair.
Were the premises uninhabitable?
- The second issue is habitability.
- The elements of section 59 Section 59 RTA applies to both fixed term and to periodic tenancies. These are the important elements where the premises are (completely) destroyed or so seriously damaged as to be uninhabitable: a. The destruction or damage must not be the result of a breach of the tenancy agreement, b. The premises must be destroyed, or so seriously damaged, as to be uninhabitable, c. If so, the rent shall abate, d. Either party may give notice to terminate the tenancy (the landlord not less than 7 days; the tenant not less than 2 days).
- These are the important elements where the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable: a. The destruction must not be the result of a breach of the tenancy agreement, b. The premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable c. If so, the rent shall abate accordingly d. Either party may apply to the Tribunal for an order terminating the tenancy, and the Tribunal may make such an order if satisfied that it would be unreasonable to require the landlord to reinstate the property or to require the tenant to continue with the tenancy even at a reduced rent. Case law on uninhabitability
- In First Avenue Property Ltd v Malik DC Christchurch (VIC-2011-009-001539) 23 November 2011 the Court said: [12]The Act does not define ‘uninhabitable’ but, in my judgment, a liberal approach should be taken to the interpretation of that word. Every case should be decided on its own facts. It is for the Tribunal to determine just what the damage was that was occasioned by the earthquake, what effect it has had on the tenants, and then to decide whether these premises are so seriously damaged as to be uninhabitable. That, in my judgment, also involves having regard to the personal circumstances of the tenants. For example, young men occupying a flat might be more robust and able to put up with the privations of earthquake damage than, say, a young family with a child who had bronchial problems that are exacerbated by liquefaction dust or even an elderly couple whose mobility is affected by their age. These are circumstances that should be taken into account in deciding whether, in the particular case, premises are so seriously damaged as to be uninhabitable. In Watkin v Brazier Property Investments Ltd DC Christchurch (CIV-201-009-001006) 28 November 2011 the Court said: [11] The Dictionary definitions (of habitable and inhabitable) do not advance the matter. The meaning of the word is very much dependant on the context. Accordingly, the term should be assessed in the light of prevailing conditions and expectations of the particular community at the particular time. In Mauger v Kennard Real Estate Limited DC Christchurch (CIV-2011-009-001428) 22 November 2011 the Court said: [6]...This was a residential house, a house to be occupied by a young family. It was a house that had no services – no water, no sewerage, no electricity. That house, in my judgment, was uninhabitable and, that being the case, the issue of rent abatement arises. It was uninhabitable for the period 11 March, when the tenancy commenced, to 25 March when Ms Calder records in diary entries that services were restored.
- The evidence is clear that the damage to the premises was not the result of a breach of the tenancy agreement.
- There is no dispute that the damage from the water ingress was considerable, both the kitchen and bathroom were unusable for many weeks while repairs were undertaken.
- While the landlord offered the tenants the opportunity to live in the premises once the carpets were replaced, I consider the refusal by the tenants to do so was reasonable because of the lack of cooking and washing facilities.
- Moreover, I am persuaded by the evidence of the witness, which was not disputed by the landlord, that the cause of the water ingress is still unknown, which suggests a degree of permanence, albeit temporarily mitigated.
- Taking into account that it is now winter with the associated colder temperatures and wet conditions I find that objectively the premises are at the very least still partially uninhabitable and have been so since the beginning of the tenancy.
- The tenants were entitled to give notice under section 59 to terminate the tenancy as at 6/2/2026.
- As the tenancy is terminated an order has been made for refund of the bond.
- The landlord’s claim for rent arrears of $8,685.00 fails.
By how much should the rent abate?
- The final issue is rent abatement.
- The Act does not define how rent should abate.
- Perhaps the clearest statement around the quantum of abatement came from the Court in Stollman & Danks v Quinovic Property Management DC Christchurch (CIV-2011-009-001499) 25 November 2011. The Court said: [12] The Tribunal, in the exercise of its discretion, abated the rent by 70%. That was generous. [13] While the tenants derived little pleasure from their occupancy of the property post February earthquake, they nonetheless had the benefit of its use. They should pay the landlord something and 30% of the rental is fair. [14] Because the property was uninhabitable from the date of the February earthquake does not mean that the rental should be reduced to zero. Section 59 of the Act provides that where “the premises are destroyed or are so seriously damaged as to be uninhabitable the rent shall abate accordingly.” That does not mean that the rent must be reduced to zero. In Mauger the Court found that the premises were uninhabitable for the duration of time the services were cut off and concluded: [7]How much should the rent abate? The fair thing, it seems to me, is to abate the rental by 50 percent for the period of four weeks and three days that the house was uninhabitable. In First Avenue Property Ltd, the Court also abated the rent by 50%.
- The tenants seek a refund of the five weeks rent they paid from 1/1/2026 to 4/2/2026 of $4,750.00.
- There is no dispute that the tenants were unable to move into the premises during this period of time due to it being uninhabitable.
- Although I am mindful that case law suggests abate does not mean a full refund of rent, I consider this is a situation where 100% abatement should be applied.
- My reason for this is that the tenancy was only for a fixed term for one year, what could be described as a typical Dunedin student tenancy and indeed all the tenants are students.
- Many of the tenants are from out of the City and while paying rent from the beginning of January do not traditionally take possession until early February or even March.
- To secure accommodation for the next University year tenancies are signed many months in advance, this tenancy having been completed on 24/9/2025.
- Often, as is the case here landlord’s take advantage of the late arrival of the tenants and with their consent, undertake any required work.
- One factor which stands out for this tenancy is that when they inspected the premises in September 2025 the tenants were told the carpets would be replaced before they moved in.
- For whatever reason the landlord chose not to begin work on carpet replacement until early 2026, despite the fact that the premises were vacant for the 2025 year.
- Had the replacement of carpets commenced in 2025 then the water ingress would have been discovered and possibly fully remediated before this tenancy began, thus allowing the tenants vacant possession from 1 January rather than uninhabitable premises.
- For these tenants to be told that they were unable to move in when expected on 6 February and indeed that a final move in date was uncertain caused them significant hardship, stress and disruption.
- Put simply the tenants had no enjoyment of the premises at all from the start of the tenancy.
- While it is unfortunate that the landlord has not been able to re-let the premises, I do not consider this outweighs the difficulties and disruption caused to the tenants by the lack of habitable premises.
- I find the rent should abate by 100% and the tenants are entitled to a refund of the rent paid of $4,750.00.
- An order for refund of the rent paid has been made.
- As the tenants have wholly succeeded with the claim, I must award the filing fee.
- The tenants did not want suppression.
- Suppression is not available to the landlord because they were unsuccessful with their claim. Note Although the issue did not form part of this application, I note with some concern the evidence suggesting that the building was refused a code compliance certificate in 1998. To avoid any future issues under section 78A the landlord may be wise to remedy this defect.
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s447155, s45, s45(1), s50, s57, s59, s59B, s78A
Key findings
- Dispute theme: rent arrears
- Dispute theme: state of repair
- Dispute theme: mould
Property management
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5470827?
The tribunal order states: The tenancy of Briar Elissa Roden, Emily Kate Lovelock, Layla May Brooks, Anna
How much money was awarded in case 5470827?
Filing Fee: $28.00 awarded to tenant; Rent Abatement: $4,750.00 awarded to tenant
What type of tenancy dispute was case 5470827?
The dispute type was not classified.
Where can I read the official tribunal order for case 5470827?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13697006-Tribunal_Order.pdf.