What was the outcome of Tenancy Tribunal case 9039004?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9039004?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9039004?

The primary dispute was Healthy homes. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9039004?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10054071-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9039004?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9039004?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9039004?

The primary dispute was Healthy homes. Related themes: Unit Titles.

Where can I read the official tribunal order for case 9039004?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10054071-Tribunal_Order.pdf.

Queenstown, Queenstown Tenancy Tribunal Case 9039004 — Healthy homes

Order

The application is dismissed.

Reasons

Both parties attended the hearing in Queenstown on 7 March 2024. Mr Wilson appeared in person. Mr and Mrs Duncan (the Duncans) appeared by Teams video from Australia. Background
Since 2002 Mr Wilson has owned and lived in unit 8 of a building development at 19 Adelaide Street Queenstown, known as Carrick.
The Duncans own unit 6 which they purchased in 2022.
Unit 8 Is on the top floor of the building, with unit 6 immediately below.
Since before the Duncans purchased their unit, Mr Wilson has complained of cooking smells/fumes entering his unit from unit 6. The previous owners undertook some work to try and remedy the problem. They apparently spent around $30,000.00 to replace the kitchen hood and vents. Mr Wilson says that the work was unconsented and did not resolve the problem.
After Mr Wilson lodged an earlier Tribunal application (since withdrawn) the parties attended mediation.
The parties agreed to have an assessment done by the Queenstown Lakes District Council (QLDC). Mr Duncan supplied various foods to be cooked by Mrs Duncan in unit 6 and the QLDC environmental health officers undertook an assessment and provided a report.
Unhappy with the result Mr Wilson now seeks a work order from the Tribunal for a specialist independent ventilation engineer to carry out an assessment. Law
Section 80(1)(g) of the Unit Titles Act 2010 (UTA) requires the owner of a unit to repair and maintain the unit and keep it in good order to ensure that no damage or harm, whether physical, economic, or otherwise, is, or has the potential to be, caused to the common property, any building element, any infrastructure, or any other unit in the building.
Section 78(1) of the Residential Tenancies Act 1986 (RTA) allows the Tribunal to make a work order, with consequential orders for non-compliance. Issue
The issue for the Tribunal to determine is whether it should make a work order requiring the Duncans to obtain (or permit) a specialist assessment to identify whether: • There is any deficiency or fault with the ducting between the floor separating their unit from Mr Wilson’s unit, allowing fumes from unit 6 to infiltrate unit 8, or • Any other issue causing fumes to infiltrate that requires the Duncans to remedy.

Should the Tribunal make a work order?

Mr Wilson has submitted that there is some fault either in the ducting in the space between the Duncans’ unit and his, or some other fault, that allows cooking smells from the Duncans’ unit to infiltrate his unit.
Despite the investigations to date, and the work completed by the previous owners, which he considers were inadequate, he submitted that the Duncans must comply with their responsibilities under section 80(1) of the UTA. By not so doing, he submitted that the Duncans have created a nuisance which interferes with his right to quiet enjoyment of his Unit.
Mr Wilson referred to the tort of negligence; the Duncans, he says, owe him a duty of care as their proximate neighbour. They have breached that duty.
The Tribunal takes a different view. Before there could be any claim in nuisance or negligence (but bearing in mind the Tribunal would decide the substantive matter by considering breaches of the UTA and RTA rather than the common law cause of action) the alleged fault resulting in the smell issue must first be identified.
Mr Wilson can speculate as to cause but that does not advance matters at all. Effectively, he is asking the Tribunal to make an order requiring the Duncans to obtain a specialist assessment and report (and presumably fund it) to advance his case against them. Without an identified cause (or more correctly breach of a statutory responsibility) there can be no consequence.
It is established law that the applicant in any civil action bears the onus of proof. The same is true for applications in this Tribunal.
Mr Wilson wants the Tribunal to direct that a qualified ventilation engineer, if necessary, from outside Queenstown, be appointed to undertake ‘complete fan, duct, outlet, and cover inspections, and full pressure measurements within 60 days with a copy to be delivered to him within that time’. He seeks an order that any deficiencies found in the unit 6 infrastructure be rectified by the Duncans at their expense within 60 days of receiving the report. He refers to the cost of the report being paid ‘as the Tribunal directs’.
Had the Duncans taken no responsibility in the past and refused to address Mr Wilson’s concerns, the Tribunal might have considered making a work order. But they have not done that.
The parties attended mediation following which an assessment was undertaken by QLDC environmental health officers.
The Duncans co-operated fully with that assessment. Mrs Duncan gave evidence that she cooked a variety of foods supplied by Mr Wilson so that tests could be carried out.
Mr Wilson considers that the assessment was inadequate because not all rooms in his unit were tested for odour and the assessment time was too short. He also queried the qualifications of the QLDC staff to undertake the assessment. Yet that was what they agreed to. He was present while the investigations were carried out, so he had some measure of control over the process.
The QLDC report has not established any breach by the Duncans comprising a failure to maintain and repair that has resulted in the odour issue Mr Wilson complains of.
The Duncans have also referred to other actions taken including an electrical inspection in August 20221 that concluded there were no faults with the ducting and grills but ‘possible cooking fumes re-entering the building once outside’.
The Tribunal considers that the onus here rests with Mr Wilson to establish what is wrong, in other words, to prove that the Duncans are in breach of their statutory responsibilities. It is his application. It is for him to prove a fault amounting to a breach by the Duncans as other unit owners.
The Duncans provided photographic evidence of the ducting between the floor of the two units. It shows no obvious fault. The area is clean and dry. But equally, it does not establish that there is no fault somewhere in the Unit 6 kitchen extraction system.
If Mr Wilson can establish some fault that establishes a breach by the Duncans of their statutory responsibilities, consequences might follow. But cause must be determined first; without that everything else is just speculation.
The reason why cooking smells enter Mr Wilson’s unit is simply unknown. He has speculated what the cause might be. But that is not sufficient.
The Tribunal declines to make a work order. Doing so would be transferring the onus of proof to the Duncans by requiring them to try and establish Mr Wilson’s claim for some breach by them failing to repair and/or maintain their kitchen extraction system.
Mr Wilson might ask how he can arrange an assessment given that access to unit 6 will probably be required. I am satisfied that the Duncans, who have co- operated throughout, will do so again, by granting access to their unit for the assessment. The Tribunal does not anticipate any issue in that regard.
In the unlikely event that the Duncans will not grant access to the specialist ventilation engineer Mr Wilson instructs, leave is reserved for him to seek a direction. Apart from that very limited issue, the application will be closed, and no further directions will be made. Result
The application is dismissed.
No costs are awarded as the application is unsuccessful.

Order

The application is dismissed.

Reasons

Both parties attended the hearing in Queenstown on 7 March 2024. Mr Wilson appeared in person. Mr and Mrs Duncan (the Duncans) appeared by Teams video from Australia. Background
Since 2002 Mr Wilson has owned and lived in unit 8 of a building development at 19 Adelaide Street Queenstown, known as Carrick.
The Duncans own unit 6 which they purchased in 2022.
Unit 8 Is on the top floor of the building, with unit 6 immediately below.
Since before the Duncans purchased their unit, Mr Wilson has complained of cooking smells/fumes entering his unit from unit 6. The previous owners undertook some work to try and remedy the problem. They apparently spent around $30,000.00 to replace the kitchen hood and vents. Mr Wilson says that the work was unconsented and did not resolve the problem.
After Mr Wilson lodged an earlier Tribunal application (since withdrawn) the parties attended mediation.
The parties agreed to have an assessment done by the Queenstown Lakes District Council (QLDC). Mr Duncan supplied various foods to be cooked by Mrs Duncan in unit 6 and the QLDC environmental health officers undertook an assessment and provided a report.
Unhappy with the result Mr Wilson now seeks a work order from the Tribunal for a specialist independent ventilation engineer to carry out an assessment. Law
Section 80(1)(g) of the Unit Titles Act 2010 (UTA) requires the owner of a unit to repair and maintain the unit and keep it in good order to ensure that no damage or harm, whether physical, economic, or otherwise, is, or has the potential to be, caused to the common property, any building element, any infrastructure, or any other unit in the building.
Section 78(1) of the Residential Tenancies Act 1986 (RTA) allows the Tribunal to make a work order, with consequential orders for non-compliance. Issue
The issue for the Tribunal to determine is whether it should make a work order requiring the Duncans to obtain (or permit) a specialist assessment to identify whether: • There is any deficiency or fault with the ducting between the floor separating their unit from Mr Wilson’s unit, allowing fumes from unit 6 to infiltrate unit 8, or • Any other issue causing fumes to infiltrate that requires the Duncans to remedy.

Should the Tribunal make a work order?

Mr Wilson has submitted that there is some fault either in the ducting in the space between the Duncans’ unit and his, or some other fault, that allows cooking smells from the Duncans’ unit to infiltrate his unit.
Despite the investigations to date, and the work completed by the previous owners, which he considers were inadequate, he submitted that the Duncans must comply with their responsibilities under section 80(1) of the UTA. By not so doing, he submitted that the Duncans have created a nuisance which interferes with his right to quiet enjoyment of his Unit.
Mr Wilson referred to the tort of negligence; the Duncans, he says, owe him a duty of care as their proximate neighbour. They have breached that duty.
The Tribunal takes a different view. Before there could be any claim in nuisance or negligence (but bearing in mind the Tribunal would decide the substantive matter by considering breaches of the UTA and RTA rather than the common law cause of action) the alleged fault resulting in the smell issue must first be identified.
Mr Wilson can speculate as to cause but that does not advance matters at all. Effectively, he is asking the Tribunal to make an order requiring the Duncans to obtain a specialist assessment and report (and presumably fund it) to advance his case against them. Without an identified cause (or more correctly breach of a statutory responsibility) there can be no consequence.
It is established law that the applicant in any civil action bears the onus of proof. The same is true for applications in this Tribunal.
Mr Wilson wants the Tribunal to direct that a qualified ventilation engineer, if necessary, from outside Queenstown, be appointed to undertake ‘complete fan, duct, outlet, and cover inspections, and full pressure measurements within 60 days with a copy to be delivered to him within that time’. He seeks an order that any deficiencies found in the unit 6 infrastructure be rectified by the Duncans at their expense within 60 days of receiving the report. He refers to the cost of the report being paid ‘as the Tribunal directs’.
Had the Duncans taken no responsibility in the past and refused to address Mr Wilson’s concerns, the Tribunal might have considered making a work order. But they have not done that.
The parties attended mediation following which an assessment was undertaken by QLDC environmental health officers.
The Duncans co-operated fully with that assessment. Mrs Duncan gave evidence that she cooked a variety of foods supplied by Mr Wilson so that tests could be carried out.
Mr Wilson considers that the assessment was inadequate because not all rooms in his unit were tested for odour and the assessment time was too short. He also queried the qualifications of the QLDC staff to undertake the assessment. Yet that was what they agreed to. He was present while the investigations were carried out, so he had some measure of control over the process.
The QLDC report has not established any breach by the Duncans comprising a failure to maintain and repair that has resulted in the odour issue Mr Wilson complains of.
The Duncans have also referred to other actions taken including an electrical inspection in August 20221 that concluded there were no faults with the ducting and grills but ‘possible cooking fumes re-entering the building once outside’.
The Tribunal considers that the onus here rests with Mr Wilson to establish what is wrong, in other words, to prove that the Duncans are in breach of their statutory responsibilities. It is his application. It is for him to prove a fault amounting to a breach by the Duncans as other unit owners.
The Duncans provided photographic evidence of the ducting between the floor of the two units. It shows no obvious fault. The area is clean and dry. But equally, it does not establish that there is no fault somewhere in the Unit 6 kitchen extraction system.
If Mr Wilson can establish some fault that establishes a breach by the Duncans of their statutory responsibilities, consequences might follow. But cause must be determined first; without that everything else is just speculation.
The reason why cooking smells enter Mr Wilson’s unit is simply unknown. He has speculated what the cause might be. But that is not sufficient.
The Tribunal declines to make a work order. Doing so would be transferring the onus of proof to the Duncans by requiring them to try and establish Mr Wilson’s claim for some breach by them failing to repair and/or maintain their kitchen extraction system.
Mr Wilson might ask how he can arrange an assessment given that access to unit 6 will probably be required. I am satisfied that the Duncans, who have co- operated throughout, will do so again, by granting access to their unit for the assessment. The Tribunal does not anticipate any issue in that regard.
In the unlikely event that the Duncans will not grant access to the specialist ventilation engineer Mr Wilson instructs, leave is reserved for him to seek a direction. Apart from that very limited issue, the application will be closed, and no further directions will be made. Result
The application is dismissed.
No costs are awarded as the application is unsuccessful.

Tenancy Tribunal case 9039004 — Healthy homes in Queenstown, Queenstown

At a glance

Tenancy Tribunal case 9039004 — Healthy homes in Queenstown, Queenstown

At a glance

Claims & awards

Order

Reasons

Should the Tribunal make a work order?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the Tribunal make a work order?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions