Tenantcheck Insights · Case study

Tenancy Tribunal case 5472326 — Exemplary damages at 3 Puma Drive, Golflands, Auckland 2013

Decided 19 Aug 2026 · Published 19 Aug 2026 · Application 5472326

Exemplary damages
Property damage

View official order on MoJ →Explore similar cases

At a glance

Key facts from the published tribunal order.

Location

Auckland

Tribunal region

Adjudicator

H Ben Fayed

Dispute themes

Award balance

Gross awards, any bond applied per the order, and the remaining balance payable.

Gross award: $8,310.29
Total balance for Landlord to pay Tenant: $8,310.29

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5472326 — net $8,310.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
General Damages	$2,060.29	General Damages
Reimbursement: Building Report	$1,250.00	Reimbursement: Building Report
Exemplary damages: S45	$5,000.00	S45
Net award	$8,310.29
Total payable by Landlord to Tenant

Order

Street Smart Property Management Limited As Agent For Alfredo And [The tenant/s] landlord/s] must pay [The tenant/s] tenant/s] $8,310.29 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The landlord was represented at the hearing by Street Smart Property Management Limited.
The application was originally heard on 18 June 2026. On that day, I adjourned the hearing so that witness summonses could be issued, having determined that it was necessary to hear from the witnesses in order to determine the application. The applicant’s claim:
The applicant brought this application to the Tribunal seeking a total of $10,510.29, comprising: a) $1,443.29 for accommodation reimbursement; b) $300.00 for food costs; c) $1,250.00 for reimbursement of the cost of a building inspection report; d) $317.00 for medical costs; and e) $7,200.00 in exemplary damages.
The tenancy commenced on 2 August 2025.
The tenant says that approximately one month later, her daughter touched a wall which gave way and was soft to the touch. She reported this to the landlord, who sent a contractor. The wall was stripped back and repairs were undertaken within a reasonable timeframe.
The tenant says that she remained concerned because she has an allergy and sensitivity to mould, although over the summer the issues were less apparent although she felt the reoccurrence of mould was difficult to manage through regular cleaning and she suspected wider moisture ingress issues.
Further alarm was caused on 4 February 2026. The tenant says that her daughter alerted her to a crack which had appeared in the ceiling. The tenant and her daughter then watched as the ceiling slowly bowed and gave way and water fell through it. Photographic evidence showed that a section of approximately one square metre of the ceiling had failed and fallen.
The tenant immediately vacated the property and moved to a motel. The landlord consented to terminating the tenancy with immediate effect. There is no dispute in this regard.
The tenant’s claim is, in essence, that this is a leaky home and that, by renting the property to her, the landlord exposed her and her child to health risks and failed to provide and maintain the premises in a reasonable state of repair in breach of section 45 of the RTA 1986. The landlord’s position:
At the first hearing, the position advanced on behalf of the landlord by his property manager was that there were no structural issues with the property and that there was no general leaking problem and that this was not a leaky building. Rather, isolated issues had arisen and had been responded to reasonably as required.
The landlord’s property manager said that the first issue was not present at the commencement of the tenancy and was promptly repaired when it arose.
As to the incident on 4 February 2026, the landlord’s position was that a tennis ball had become lodged in an internal gutter, causing the gutter to overflow and the ceiling inside the property to fail.
I asked the landlord’s property manager whether the internal gutter should have had an external overflow. She said no, and that it was normal for an internal gutter to fail internally.
It was principally for this reason that I adjourned the hearing to receive evidence from the relevant witnesses. Evidence of Mike Davidson:
The first witness was Mike Davidson of The Inspectors Group, who inspected the property and prepared a building report dated 12 February 2026 after the tenant decided to vacate.
The report identified extensive defects and high-risk areas relating to the building’s weathertightness and durability. It identified, among other matters, inadequate or absent capillary drainage paths; missing or inadequate flashings and water-diversion measures; defects to the fibre-cement cladding; cracking and evidence of previous patch repairs; defects to roof and apron flashing junctions; inappropriate silicone repairs in high-risk water drainage areas; defective roof components; and defects associated with the internal guttering.
Of particular significance, the report identified ponding within an internal gutter, an absence of appropriate mechanical drip edges, and no overflow to the internal gutter sump. It also identified defects at the internal gutter and parapet junction, which Mr Davidson considered should have incorporated an overflow. The report recorded evidence of recurring water ingress and concluded that the exterior cladding and roofing were in poor condition and required remediation. The faults identified were described as structural, weathertightness and durability defects which, if left unremedied, would affect the structure of the building.
When I asked Mr Davidson to explain his findings in layperson’s terms, his evidence was that these were defects which should not have been present, reflected deficiencies in the construction of the property, and created pathways for water ingress.
Mr Davidson’s evidence was unequivocal that this was a leaky building.
His report also recorded moisture readings of 104.3, 62.8, 88.7, 61.7, 77.4 and
2.
I asked Mr Davidson what those readings meant. He explained that the readings were not themselves percentage moisture readings. He said that readings between approximately 25 and 40 on the moisture detector would be normal, and that readings above 50 were indicative of water ingress behind the walls and were reasonably a cause for concern.
Mr Davidson was also asked about the landlord’s position that it was normal for an internal gutter, if blocked, to overflow into the interior of the property. He rejected that proposition. His evidence was that an overflow should have been installed so that, if the internal gutter became blocked, the overflow would engage rather than water entering the dwelling. Evidence of the adjoining owner:
The next witness was the owner of the adjoining duplex at 5 Puma Drive. He purchased his property in 2019 and has, during that period, also been the chair of the East Park Residents Association.
His role with the East Park Residents Association provides important context to his evidence. The development has experienced widespread leaking and weathertightness issues. The Association supports owners within the development by providing advice and assistance as to how properties affected by those issues should appropriately be maintained and looked after, including the particular maintenance requirements arising from the known weathertightness problems affecting the development.
His evidence was extensive. In essence, and insofar as it was relevant to the issues I must determine, he explained that through his role as chair he had knowledge of the maintenance requirements of these properties and the steps required to manage their susceptibility to water ingress.
He said that he had discussed maintenance issues affecting the property with its owner. His evidence was that, despite advice concerning the maintenance requirements of these properties, the owner had addressed problems in a haphazard way as they arose, without addressing the underlying causes, and had cut corners in relation to the maintenance required for a property with chronic weathertightness issues. Evidence of Muhammad Feroz Khan:
The final witness was Muhammad Feroz Khan, who had undertaken repairs for the landlord.
Mr Khan was summoned because the landlord’s position was that the incidents were isolated leaks which had been promptly repaired. However, Mr Khan’s invoices referred to rotten timber framing, which appeared inconsistent with a recent and isolated incident.
At the hearing, Mr Khan confirmed that, when he opened the walls to undertake repairs, there was rot within the timber framing. Breach of the landlord’s obligations
The issue for the Tribunal is whether the landlord breached the obligation under s 45(1)(b) of the Residential Tenancies Act 1986 to 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.
What is abundantly clear from the evidence of the witnesses is that this is a leaky home with significant structural and weathertightness issues.
The problems associated with a property of this nature would undoubtedly be difficult and challenging for an owner to address, particularly where the property forms part of a duplex. That difficulty does not, however, alter the landlord’s obligations to a residential tenant.
The position advanced on behalf of the landlord at the first hearing was that the landlord was unaware of any structural issues with the property. That position was completely undermined by the evidence at the resumed hearing.
I do not accept that the landlord was unaware of the structural and weathertightness issues affecting the property.
The evidence of the adjoining owner establishes a history of discussions concerning the particular maintenance requirements and weathertightness problems affecting these properties. Mr Davidson identified extensive and longstanding defects capable of allowing water ingress. Mr Khan found rotten timber framing when the walls were opened. Those matters are inconsistent with the suggestion that the tenancy was affected only by isolated leaks which happened to arise during the tenant’s occupation and were promptly repaired.
I am satisfied, on the balance of probabilities, that the landlord knew that the property had significant moisture and weathertightness issues and nevertheless rented it to the applicant.
I accept the tenant’s evidence that she has allergies and sensitivity to mould. Even leaving that particular vulnerability aside, excessive moisture and mould in residential properties present recognised risks to occupants, and the statutory framework imposes obligations on landlords intended to protect tenants from such conditions.
I therefore find that the landlord breached s 45(1)(b) of the Act. Damages and compensation
The tenant says that she suffered health issues and was required to take extended periods away from work due to illness. She also incurred expenses when she moved from the property at short notice following the ceiling collapse on 4 February 2026, together with additional food costs.
The total amount of these claims is $2,060.29. It was difficult for me to understand the exact causal link between the costs claimed and the underlying breach.
Section 85 of the Act provides that, subject to the Act and regulations, the Tribunal is to exercise its jurisdiction in the manner most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants. The Tribunal is required to determine disputes according to the general principles of law relating to the matter and the substantial merits and justice of the case, but is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
I am guided in making that assessment by the District Court decision in Maria Cavanagh v Kāinga Ora [2022] NZDC 7003.
In Cavanagh, Judge R E Neave considered a Tribunal decision in which a breach had been established but damages had not been awarded because ordinary damages, as opposed to exemplary damages, had not specifically been claimed.
At [65], Judge Neave said: “Even though there was no specific claim for ordinary damages as opposed to exemplary damages I do not consider it appropriate for a tribunal with the extensive jurisdiction of the Tenancy Tribunal to allow itself to become bogged down in pleading points.”
His Honour considered that, having determined there had been a breach of the landlord’s obligations, the Tribunal should have gone on to consider whether an award of damages should nevertheless be made.
That approach is consistent with s 77(1)(n) of the Act, which empowers the Tribunal to order a landlord or tenant to pay to the other party such sum by way of damages or compensation as the Tribunal assesses in respect of a breach of an express or implied provision of the tenancy agreement or any provision of the Act.
The guidance I take from Cavanagh is that deficiencies in the way a lay applicant has pleaded a claim do not necessarily require the Tribunal to make no award where a substantive breach has been established. The Tribunal must nevertheless determine the matter according to the general principles of law and the substantial merits and justice of the case.
The guidance this decision provides is that, where a breach is established, the absence of precise pleading or quantification does not necessarily justify making no award. Equally, the Tribunal cannot simply substitute an arbitrary figure for a claim which has not been proven or make a nominal award which does not adequately acknowledge the scope and impact of the breach.
The assessment must be grounded in the breach actually established and the consequences of that breach that can reasonably be inferred from the evidence.
This is a case where the landlord knew that there were moisture issues with the property. The landlord’s conduct throughout the hearing demonstrated, at best, a head-in-the-sand approach. There was also an element of misleadingness in the position advanced on the landlord’s behalf, in that the problems were portrayed as isolated incidents when the evidence establishes that the landlord knew this was a building with structural and ongoing weathertightness issues.
The tenant was entitled to know that.
Although I am unable to make precise findings as to the causal relationship between each individual expense or health consequence claimed and the condition of the property, I am satisfied on the balance of probabilities that the breach caused the tenant loss, inconvenience and disruption.
In the circumstances, the amount of $2,060.29 is modest and entirely reasonable as an award of general damages, and I award that amount. Building inspection report:
The tenant also seeks reimbursement of the $1,250 cost of obtaining the building inspection report.
I am satisfied that this expense was incurred. Given the circumstances in which the tenant obtained the report, and the significant defects it subsequently identified, it was reasonable for the tenant to incur that expense.
They also sought reimbursement for Mr Davidson’s time in attending the hearing to give evidence. I invited them to provide submissions to the Tribunal in support of that request. No submissions were subsequently received, and I therefore make no award in respect of Mr Davidson’s attendance costs.
I therefore award $1,250 for the cost of the building inspection report. Exemplary damages
The remaining issue is whether exemplary damages are appropriate.
Exemplary damages are punitive in nature and are intended to mark the Tribunal’s disapproval of unlawful conduct: Auckland City Council v Blundell [1986] 1 NZLR 732.
Section 45(1A) provides that a failure by a landlord to comply with s 45(1)(b) is an unlawful act.
Section 109(1) permits the Tribunal to order a person who has committed an unlawful act to pay an amount in the nature of exemplary damages. Schedule 1A provides that the maximum amount that may be awarded for a breach of s 45(1A) is $7,200.
Section 109(3) sets out the matters to which the Tribunal must have regard when determining whether exemplary damages should be awarded and, if so, the amount. Those matters include the intent of the person committing the unlawful act, the effect of the unlawful act, the interests of the landlord or tenant against whom it was committed, and the public interest.
The position advanced on behalf of the landlord was that the landlord was unaware of any structural issues with the property. I do not accept that the landlord was unaware of the structural and weathertightness issues affecting the property.
I did, however, form the impression from the evidence as a whole that the landlord appears to have regarded patching problems as they arose as an adequate way of dealing with the property. I also gathered from the adjoining owner’s evidence that the owner of the property had become somewhat disengaged from its ongoing issues. That may reflect resignation after dealing for some time with a property suffering from chronic problems.
None of that excuses the position in which the tenant was placed.
In TMT New Zealand Ltd t/a Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, Judge Harrop addressed the distinction between knowledge of the relevant facts and knowledge of the legal obligations arising from those facts.
When considering an alleged breach concerning cleanliness, the Court held at [29]–[30] that intentionality required evidence that the landlord knew of the relevant state of the premises and deliberately rented them in that condition. In the absence of sufficient evidence of that factual knowledge, the necessary element of intentionality was not established.
The documentation breaches considered later in that decision were different. At [35], the Court found that there was no dispute that the required insurance and insulation statements had not been included when the tenancy agreement was entered into. Providing that information subsequently did not satisfy the statutory obligation because it was information required to be provided at the outset.
At [37], although the landlord was apparently “not fully aware” of the statutory requirements, the Court nevertheless treated the failures as intentional. Judge Harrop observed: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional.”
The principle I take from TMT is that it is necessary to distinguish between knowledge of the facts giving rise to an obligation and knowledge of the precise legal consequences of those facts.
Here, I am satisfied that the landlord knew of the material condition of the property. The landlord knew that the building had ongoing moisture and weathertightness problems and nevertheless rented it to the tenant and thereafter dealt with problems by patching them as they arose rather than addressing their underlying cause.
The landlord’s failure to appreciate the full extent of the legal obligations arising from those facts does not excuse compliance with the Act.
I am therefore satisfied that the requirement of intentionality for the purposes of s 109 is met.
I turn to the effect of the unlawful act. I accept the tenant’s evidence and am satisfied, on the balance of probabilities, that living in the property with the level of moisture established by the inspector’s evidence was likely a contributing factor to the adverse effects on her health. I am also satisfied that the condition of the property contributed to increased costs and culminated in the tenant having to find alternative accommodation at short notice after the ceiling collapsed on 4 February 2026.
There is also a strong public interest in landlords complying with their maintenance obligations and honestly representing the condition of residential properties to tenants who pay significant sums for the right to occupy them.
Having regard to the landlord’s knowledge, the seriousness and duration of the underlying defects, the effect on the tenant, the landlord’s response to the defects, the interests of the tenant, and the public interest, I am satisfied that this was a significant breach of the Act.
An award towards the higher end of the maximum available for a breach of s 45(1A) is warranted.
I consider an award of $5,000 in exemplary damages appropriate in all the circumstances. Filing Fee:
The applicant has substantially succeeded in her claim and the filing fee is therefore awarded.

Topics & place

Topics are dispute themes across the order (not the same as claim-type money lines).

Exemplary damages Property damage Auckland

Residential Tenancies Act sections

s109, s109(1), s109(3), s31, s45, s45(1), s45(1A), s59, s77(1), s85

Key findings

Dispute theme: property damage
Dispute theme: exemplary damages

Property management

STREET SMART PROPERTY MANAGEMENT LIMITED as agent for Alfredo and Cleo (respondent)

Frequently asked questions

Common questions about this Tenancy Tribunal case.

What was Tenancy Tribunal case 5472326 about?

The tribunal order states: Street Smart Property Management Limited As Agent For Alfredo And [The tenant/s] landlord/s] must

How much money was awarded in case 5472326?

Property Damage: $5,000.00 awarded to tenant; Property Damage: $2,060.29 awarded to tenant; Reimbursement: Building Report: $1,250.00 awarded to tenant

What type of tenancy dispute was case 5472326?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 5472326?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/14077809-Tribunal_Order.pdf.

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Claims and awards in Tenancy Tribunal application 5472326 — net $8,310.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.

Claim

Landlord

Tenant

Reason

General Damages

$2,060.29

General Damages

Reimbursement: Building Report

$1,250.00

Reimbursement: Building Report

Exemplary damages: S45

$5,000.00

S45

Net award

$8,310.29

Total payable by Landlord to Tenant

Reasons

Both parties attended the hearing.

The landlord was represented at the hearing by Street Smart Property Management Limited.

The application was originally heard on 18 June 2026. On that day, I adjourned the hearing so that witness summonses could be issued, having determined that it was necessary to hear from the witnesses in order to determine the application. The applicant’s claim:

The applicant brought this application to the Tribunal seeking a total of $10,510.29, comprising: a) $1,443.29 for accommodation reimbursement; b) $300.00 for food costs; c) $1,250.00 for reimbursement of the cost of a building inspection report; d) $317.00 for medical costs; and e) $7,200.00 in exemplary damages.

The tenancy commenced on 2 August 2025.

The tenant says that approximately one month later, her daughter touched a wall which gave way and was soft to the touch. She reported this to the landlord, who sent a contractor. The wall was stripped back and repairs were undertaken within a reasonable timeframe.

The tenant says that she remained concerned because she has an allergy and sensitivity to mould, although over the summer the issues were less apparent although she felt the reoccurrence of mould was difficult to manage through regular cleaning and she suspected wider moisture ingress issues.

Further alarm was caused on 4 February 2026. The tenant says that her daughter alerted her to a crack which had appeared in the ceiling. The tenant and her daughter then watched as the ceiling slowly bowed and gave way and water fell through it. Photographic evidence showed that a section of approximately one square metre of the ceiling had failed and fallen.

The tenant immediately vacated the property and moved to a motel. The landlord consented to terminating the tenancy with immediate effect. There is no dispute in this regard.

The tenant’s claim is, in essence, that this is a leaky home and that, by renting the property to her, the landlord exposed her and her child to health risks and failed to provide and maintain the premises in a reasonable state of repair in breach of section 45 of the RTA 1986. The landlord’s position:

At the first hearing, the position advanced on behalf of the landlord by his property manager was that there were no structural issues with the property and that there was no general leaking problem and that this was not a leaky building. Rather, isolated issues had arisen and had been responded to reasonably as required.

The landlord’s property manager said that the first issue was not present at the commencement of the tenancy and was promptly repaired when it arose.

As to the incident on 4 February 2026, the landlord’s position was that a tennis ball had become lodged in an internal gutter, causing the gutter to overflow and the ceiling inside the property to fail.

I asked the landlord’s property manager whether the internal gutter should have had an external overflow. She said no, and that it was normal for an internal gutter to fail internally.

It was principally for this reason that I adjourned the hearing to receive evidence from the relevant witnesses. Evidence of Mike Davidson:

The first witness was Mike Davidson of The Inspectors Group, who inspected the property and prepared a building report dated 12 February 2026 after the tenant decided to vacate.

The report identified extensive defects and high-risk areas relating to the building’s weathertightness and durability. It identified, among other matters, inadequate or absent capillary drainage paths; missing or inadequate flashings and water-diversion measures; defects to the fibre-cement cladding; cracking and evidence of previous patch repairs; defects to roof and apron flashing junctions; inappropriate silicone repairs in high-risk water drainage areas; defective roof components; and defects associated with the internal guttering.

Of particular significance, the report identified ponding within an internal gutter, an absence of appropriate mechanical drip edges, and no overflow to the internal gutter sump. It also identified defects at the internal gutter and parapet junction, which Mr Davidson considered should have incorporated an overflow. The report recorded evidence of recurring water ingress and concluded that the exterior cladding and roofing were in poor condition and required remediation. The faults identified were described as structural, weathertightness and durability defects which, if left unremedied, would affect the structure of the building.

When I asked Mr Davidson to explain his findings in layperson’s terms, his evidence was that these were defects which should not have been present, reflected deficiencies in the construction of the property, and created pathways for water ingress.

Mr Davidson’s evidence was unequivocal that this was a leaky building.

His report also recorded moisture readings of 104.3, 62.8, 88.7, 61.7, 77.4 and

I asked Mr Davidson what those readings meant. He explained that the readings were not themselves percentage moisture readings. He said that readings between approximately 25 and 40 on the moisture detector would be normal, and that readings above 50 were indicative of water ingress behind the walls and were reasonably a cause for concern.

Mr Davidson was also asked about the landlord’s position that it was normal for an internal gutter, if blocked, to overflow into the interior of the property. He rejected that proposition. His evidence was that an overflow should have been installed so that, if the internal gutter became blocked, the overflow would engage rather than water entering the dwelling. Evidence of the adjoining owner:

The next witness was the owner of the adjoining duplex at 5 Puma Drive. He purchased his property in 2019 and has, during that period, also been the chair of the East Park Residents Association.

His role with the East Park Residents Association provides important context to his evidence. The development has experienced widespread leaking and weathertightness issues. The Association supports owners within the development by providing advice and assistance as to how properties affected by those issues should appropriately be maintained and looked after, including the particular maintenance requirements arising from the known weathertightness problems affecting the development.

His evidence was extensive. In essence, and insofar as it was relevant to the issues I must determine, he explained that through his role as chair he had knowledge of the maintenance requirements of these properties and the steps required to manage their susceptibility to water ingress.

He said that he had discussed maintenance issues affecting the property with its owner. His evidence was that, despite advice concerning the maintenance requirements of these properties, the owner had addressed problems in a haphazard way as they arose, without addressing the underlying causes, and had cut corners in relation to the maintenance required for a property with chronic weathertightness issues. Evidence of Muhammad Feroz Khan:

The final witness was Muhammad Feroz Khan, who had undertaken repairs for the landlord.

Mr Khan was summoned because the landlord’s position was that the incidents were isolated leaks which had been promptly repaired. However, Mr Khan’s invoices referred to rotten timber framing, which appeared inconsistent with a recent and isolated incident.

At the hearing, Mr Khan confirmed that, when he opened the walls to undertake repairs, there was rot within the timber framing. Breach of the landlord’s obligations

The issue for the Tribunal is whether the landlord breached the obligation under s 45(1)(b) of the Residential Tenancies Act 1986 to 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.

What is abundantly clear from the evidence of the witnesses is that this is a leaky home with significant structural and weathertightness issues.

The problems associated with a property of this nature would undoubtedly be difficult and challenging for an owner to address, particularly where the property forms part of a duplex. That difficulty does not, however, alter the landlord’s obligations to a residential tenant.

The position advanced on behalf of the landlord at the first hearing was that the landlord was unaware of any structural issues with the property. That position was completely undermined by the evidence at the resumed hearing.

I do not accept that the landlord was unaware of the structural and weathertightness issues affecting the property.

The evidence of the adjoining owner establishes a history of discussions concerning the particular maintenance requirements and weathertightness problems affecting these properties. Mr Davidson identified extensive and longstanding defects capable of allowing water ingress. Mr Khan found rotten timber framing when the walls were opened. Those matters are inconsistent with the suggestion that the tenancy was affected only by isolated leaks which happened to arise during the tenant’s occupation and were promptly repaired.

I am satisfied, on the balance of probabilities, that the landlord knew that the property had significant moisture and weathertightness issues and nevertheless rented it to the applicant.

I accept the tenant’s evidence that she has allergies and sensitivity to mould. Even leaving that particular vulnerability aside, excessive moisture and mould in residential properties present recognised risks to occupants, and the statutory framework imposes obligations on landlords intended to protect tenants from such conditions.

I therefore find that the landlord breached s 45(1)(b) of the Act. Damages and compensation

The tenant says that she suffered health issues and was required to take extended periods away from work due to illness. She also incurred expenses when she moved from the property at short notice following the ceiling collapse on 4 February 2026, together with additional food costs.

The total amount of these claims is $2,060.29. It was difficult for me to understand the exact causal link between the costs claimed and the underlying breach.

Section 85 of the Act provides that, subject to the Act and regulations, the Tribunal is to exercise its jurisdiction in the manner most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants. The Tribunal is required to determine disputes according to the general principles of law relating to the matter and the substantial merits and justice of the case, but is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities.

I am guided in making that assessment by the District Court decision in Maria Cavanagh v Kāinga Ora [2022] NZDC 7003.

In Cavanagh, Judge R E Neave considered a Tribunal decision in which a breach had been established but damages had not been awarded because ordinary damages, as opposed to exemplary damages, had not specifically been claimed.

At [65], Judge Neave said: “Even though there was no specific claim for ordinary damages as opposed to exemplary damages I do not consider it appropriate for a tribunal with the extensive jurisdiction of the Tenancy Tribunal to allow itself to become bogged down in pleading points.”

His Honour considered that, having determined there had been a breach of the landlord’s obligations, the Tribunal should have gone on to consider whether an award of damages should nevertheless be made.

That approach is consistent with s 77(1)(n) of the Act, which empowers the Tribunal to order a landlord or tenant to pay to the other party such sum by way of damages or compensation as the Tribunal assesses in respect of a breach of an express or implied provision of the tenancy agreement or any provision of the Act.

The guidance I take from Cavanagh is that deficiencies in the way a lay applicant has pleaded a claim do not necessarily require the Tribunal to make no award where a substantive breach has been established. The Tribunal must nevertheless determine the matter according to the general principles of law and the substantial merits and justice of the case.

The guidance this decision provides is that, where a breach is established, the absence of precise pleading or quantification does not necessarily justify making no award. Equally, the Tribunal cannot simply substitute an arbitrary figure for a claim which has not been proven or make a nominal award which does not adequately acknowledge the scope and impact of the breach.

The assessment must be grounded in the breach actually established and the consequences of that breach that can reasonably be inferred from the evidence.

This is a case where the landlord knew that there were moisture issues with the property. The landlord’s conduct throughout the hearing demonstrated, at best, a head-in-the-sand approach. There was also an element of misleadingness in the position advanced on the landlord’s behalf, in that the problems were portrayed as isolated incidents when the evidence establishes that the landlord knew this was a building with structural and ongoing weathertightness issues.

The tenant was entitled to know that.

Although I am unable to make precise findings as to the causal relationship between each individual expense or health consequence claimed and the condition of the property, I am satisfied on the balance of probabilities that the breach caused the tenant loss, inconvenience and disruption.

In the circumstances, the amount of $2,060.29 is modest and entirely reasonable as an award of general damages, and I award that amount. Building inspection report:

The tenant also seeks reimbursement of the $1,250 cost of obtaining the building inspection report.

I am satisfied that this expense was incurred. Given the circumstances in which the tenant obtained the report, and the significant defects it subsequently identified, it was reasonable for the tenant to incur that expense.

They also sought reimbursement for Mr Davidson’s time in attending the hearing to give evidence. I invited them to provide submissions to the Tribunal in support of that request. No submissions were subsequently received, and I therefore make no award in respect of Mr Davidson’s attendance costs.

I therefore award $1,250 for the cost of the building inspection report. Exemplary damages

The remaining issue is whether exemplary damages are appropriate.

Exemplary damages are punitive in nature and are intended to mark the Tribunal’s disapproval of unlawful conduct: Auckland City Council v Blundell [1986] 1 NZLR 732.

Section 45(1A) provides that a failure by a landlord to comply with s 45(1)(b) is an unlawful act.

Section 109(1) permits the Tribunal to order a person who has committed an unlawful act to pay an amount in the nature of exemplary damages. Schedule 1A provides that the maximum amount that may be awarded for a breach of s 45(1A) is $7,200.

Section 109(3) sets out the matters to which the Tribunal must have regard when determining whether exemplary damages should be awarded and, if so, the amount. Those matters include the intent of the person committing the unlawful act, the effect of the unlawful act, the interests of the landlord or tenant against whom it was committed, and the public interest.

The position advanced on behalf of the landlord was that the landlord was unaware of any structural issues with the property. I do not accept that the landlord was unaware of the structural and weathertightness issues affecting the property.

I did, however, form the impression from the evidence as a whole that the landlord appears to have regarded patching problems as they arose as an adequate way of dealing with the property. I also gathered from the adjoining owner’s evidence that the owner of the property had become somewhat disengaged from its ongoing issues. That may reflect resignation after dealing for some time with a property suffering from chronic problems.

None of that excuses the position in which the tenant was placed.

In TMT New Zealand Ltd t/a Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, Judge Harrop addressed the distinction between knowledge of the relevant facts and knowledge of the legal obligations arising from those facts.

When considering an alleged breach concerning cleanliness, the Court held at [29]–[30] that intentionality required evidence that the landlord knew of the relevant state of the premises and deliberately rented them in that condition. In the absence of sufficient evidence of that factual knowledge, the necessary element of intentionality was not established.

The documentation breaches considered later in that decision were different. At [35], the Court found that there was no dispute that the required insurance and insulation statements had not been included when the tenancy agreement was entered into. Providing that information subsequently did not satisfy the statutory obligation because it was information required to be provided at the outset.

At [37], although the landlord was apparently “not fully aware” of the statutory requirements, the Court nevertheless treated the failures as intentional. Judge Harrop observed: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional.”

The principle I take from TMT is that it is necessary to distinguish between knowledge of the facts giving rise to an obligation and knowledge of the precise legal consequences of those facts.

Here, I am satisfied that the landlord knew of the material condition of the property. The landlord knew that the building had ongoing moisture and weathertightness problems and nevertheless rented it to the tenant and thereafter dealt with problems by patching them as they arose rather than addressing their underlying cause.

The landlord’s failure to appreciate the full extent of the legal obligations arising from those facts does not excuse compliance with the Act.

I am therefore satisfied that the requirement of intentionality for the purposes of s 109 is met.

I turn to the effect of the unlawful act. I accept the tenant’s evidence and am satisfied, on the balance of probabilities, that living in the property with the level of moisture established by the inspector’s evidence was likely a contributing factor to the adverse effects on her health. I am also satisfied that the condition of the property contributed to increased costs and culminated in the tenant having to find alternative accommodation at short notice after the ceiling collapsed on 4 February 2026.

There is also a strong public interest in landlords complying with their maintenance obligations and honestly representing the condition of residential properties to tenants who pay significant sums for the right to occupy them.

Having regard to the landlord’s knowledge, the seriousness and duration of the underlying defects, the effect on the tenant, the landlord’s response to the defects, the interests of the tenant, and the public interest, I am satisfied that this was a significant breach of the Act.

An award towards the higher end of the maximum available for a breach of s 45(1A) is warranted.

I consider an award of $5,000 in exemplary damages appropriate in all the circumstances. Filing Fee:

The applicant has substantially succeeded in her claim and the filing fee is therefore awarded.