What was the outcome of Tenancy Tribunal case 4282907?

The tribunal order states: Order 2 of the Tribunal’s Order in these proceedings dated 14 June 2022 (“the

How much money was awarded in case 4282907?

Compensation: Bathroom Floor: $4,500.00 awarded to tenant; Compensation: Bathroom Sink: $550.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Compensation: Dishwasher: $522.00 awarded to tenant; Compensation: Drain Inspection: $295.00 awarded to tenant; Compensation: Exterior Repaint: $6,400.00 awarded to tenant; Compensation: Gas Burner: $650.00 awarded to tenant; Compensation: HRV Filter: $960.00 awarded to tenant; Compensation: HRV Motor: $800.00 awarded to tenant; Compensation: Interior Repaint: $3,600.00 awarded to tenant; Compensation: Range Hood: $585.00 awarded to tenant; Compensation: Re-Lay Drains: $5,750.00 awarded to tenant; Compensation: Replace Septic Tank: $862.50 awarded to tenant; Compensation: Roof Wash And Paint: $6,400.00 awarded to tenant; Cleaning: $621.00 awarded to tenant; Compensation: Septic tank field towe…: $6,325.00 awarded to tenant; Rent Arrears: $96,198.57 awarded to landlord

What type of tenancy dispute was case 4282907?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4282907?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9547596-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4282907?

The tribunal order states: Order 2 of the Tribunal’s Order in these proceedings dated 14 June 2022 (“the

How much money was awarded in case 4282907?

Compensation: Bathroom Floor: $4,500.00 awarded to tenant; Compensation: Bathroom Sink: $550.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Compensation: Dishwasher: $522.00 awarded to tenant; Compensation: Drain Inspection: $295.00 awarded to tenant; Compensation: Exterior Repaint: $6,400.00 awarded to tenant; Compensation: Gas Burner: $650.00 awarded to tenant; Compensation: HRV Filter: $960.00 awarded to tenant; Compensation: HRV Motor: $800.00 awarded to tenant; Compensation: Interior Repaint: $3,600.00 awarded to tenant; Compensation: Range Hood: $585.00 awarded to tenant; Compensation: Re-Lay Drains: $5,750.00 awarded to tenant; Compensation: Replace Septic Tank: $862.50 awarded to tenant; Compensation: Roof Wash And Paint: $6,400.00 awarded to tenant; Cleaning: $621.00 awarded to tenant; Compensation: Septic tank field towe…: $6,325.00 awarded to tenant; Rent Arrears: $96,198.57 awarded to landlord

What type of tenancy dispute was case 4282907?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4282907?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9547596-Tribunal_Order.pdf.

348 Henderson Valley Road, Henderson Valley, Auckland Tenancy Tribunal Case 4282907 — Rent arrears

Claims and awards in Tenancy Tribunal application 4282907 — net $56,878.07 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 17 May 2022	$96,198.57		Rent arrears to 17 May 2022
Compensation: Bathroom floor		$4,500.00	Bathroom floor
Compensation: HRV Filter		$960.00	HRV Filter
Compensation: HRV motor		$800.00	HRV motor
Compensation: Range Hood		$585.00	Range Hood
Compensation: Gas Burner		$650.00	Gas Burner
Compensation: Bathroom sink		$550.00	Bathroom sink
Compensation: Dishwasher		$522.00	Dishwasher
Compensation: Interior repaint		$3,600.00	Interior repaint
Compensation: Exterior repaint		$6,400.00	Exterior repaint
Compensation: Septic tank field tower		$6,325.00	Septic tank field tower
Compensation: Ceiling leak repair		$500.00	Ceiling leak repair
Compensation: Re-lay drains		$5,750.00	Re-lay drains
Compensation: Roof wash and paint		$6,400.00	Roof wash and paint
Compensation: Septic tank clean		$621.00	Septic tank clean
Compensation: Drain inspection		$295.00	Drain inspection
Compensation: Replace septic tank		$862.50	Replace septic tank
Total award	$96,198.57	$39,320.50
Net award	$56,878.07
Total payable by Tenant to Landlord	$56,878.07

Order

Order 2 of the Tribunal’s Order in these proceedings dated 14 June 2022 (“the Tribunal Order”), is replaced with the following: Xue Chen must pay Kyung Won Lee, Heung Soon Kang and Jung Nam Lee $56,878.07 immediately, as follows:

Reasons

I first apologise to the parties for the delay in this decision being made. I have been on extended leave and reconsideration of the Order needed to be undertaken by me, not by another adjudicator in my absence.
An appeal against the Tribunal Order was lodged and was determined by an Order of the District Court dated 19 July 2023 in Chen v Kang [2023] NZDC 14956 (“the appeal Decision”)
The appeal Decision concerned the findings in the Tribunal Order determining the tenant’s claims for compensation for unjust enrichment. It found that while the applicable principles were correctly stated, I had misdirected myself in finding (paragraph [47] of the Tribunal Order) that, “...any moneys claimed by way of unjust enrichment must be less than the amount spent by the claimant..”
The appeal Decision instead finds that (paragraphs [11] – [14]), “....there is absolutely no rule that the unjust enrichment cannot be the exact sum expended by the plaintiff........so it is wrong as a matter of law to discount the claims made by the tenant by any percentage or assume that the full costs cannot be recovered. The full cost can be recovered in full if the adjudicator assesses that this is a proper measure of the landlord’s loss – for example the money spent on appliances could potentially be recovered in full if the Adjudicator was satisfied that the tenant had installed a moderately priced range of appliances.....It may be that in fairness to the tenant, the landlord should be responsible for 100 percent of some of the claims. The test is an objective analysis of benefit with the possibility of some subjective adjustment in favour of the landlord.”
The appeal decision directed that I reconsider the tenant’s claims for unjust enrichment to, “...assess the correct compensation without applying a global discount.” and that I, “...must assume there is some incontrovertible benefit to the landlord in having necessary repairs carried out to a house.”
I have considered whether a further hearing or submissions from the parties should be directed. Having reviewed the file and revisited the Tribunal Order, I am satisfied that I can properly apply the legal principles, as directed in the appeal Decision to my findings, to fairly conduct the reassessment directed without hearing further from the parties.
The reassessment of each of the claims is set out below. Bathroom Floor
I was satisfied that the timber floor in the bathroom required replacement and that it was a repair/ maintenance item which the landlords would have had to pay for if the tenant hadn’t had it done.
I accepted the tenant’s evidence that the cost to him of that work being done was $4,500.00. I applied a 25% “discount” to recognise that, in breach of s.40(1)(d), “........by not notifying the landlords or seeking their prior approval, the tenant has deprived the landlords of the opportunity to have the work done on their terms and at a cost negotiated by them ie. that the benefit received by the landlord may be less than the cost incurred by the tenant.”
In re-assessing the claim in light of the legal principles set out in the appeal Decision I find that in the absence of an evidential basis for assuming that the landlords did not receive the full value of that repair/ maintenance work, such a discount is not warranted and the compensation awarded is adjusted to $4,500.00. Fireplace replacement/ Heat pump installation
These claims were dismissed as they arose from the installation of fixtures (see s.42(1) and in terms of the appeal Decision do not require reconsideration. HRV System
I accepted the tenant’s evidence regarding his expenditure on the system which it was the landlords’ responsibility to maintain.
I found that the landlords had obtained the benefit of having work they were responsible for paid by the tenant.
Again, in assessing the compensation amount, I allowed a 25% “discount” to recognise that in my view the landlords should have had the opportunity to arrange that work on their terms.
For the same reasons as given in paragraph 11, such a discount should not have been applied and the tenant should be awarded the full extent of his expenditure. Appliance replacement
I accepted the tenant’s evidence about the need for the rangehood, gas burner and dishwasher to be replaced and the sums paid by him.
I found that the landlords had received a benefit from the tenant having replaced appliances they otherwise would need to have bought but had lost the opportunity to replace them with items of their choosing, that could have been adequate to meet their obligations, but at a lower cos. I awarded the tenant 50% of his expenditure.
I found that the same principles apply to replacement of the bathroom sink.
Having reconsidered these claims, I remain of the view that in assessing the benefit to the landlords of the tenant having bought those appliances, without consultation, I should take into account that the landlords had no need for new appliances to have been bought. The landlords do not gain the direct benefit of using those new appliances. The landlords’ benefit is that their obligation to have those items provided in their rental premises has been met, at the tenant’s expense.
Unlike where necessary repairs or maintenance are carried out, their obligation could equally have been met with adequate but second-hand appliances, at lesser cost.
In my view the awards made in respect of these claims remain appropriate. Drains and septic tank
I found that maintaining the drains and septic tank were the landlords’ obligation and that the landlords had gained a benefit from the tenant having paid for fundamental work that they would otherwise have had to get done themselves.
As with the compensation awarded for the flooring and HRV system, I allowed a 25% percent discount in recognition that the landlords had been deprived of the opportunity to negotiate their own terms for the work.
For the reasons applied above that discount is inappropriate and the tenant’s full expenditure should be awarded. Tree removal
I did not find it proved that the landlords had obtained any benefit from the tenant having that work done.
That claim was dismissed and does not require a reassessment. Painting – Interior/ Exterior/ Roof
I found that the work was needed and would have had to be undertaken by the landlords if the tenant hadn’t had it done, for the house to be kept in a reasonable state of repair.
My assessment was that unlike the servicing of infrastructure like septic tanks and drains or HRV systems, repainting involved a range of decisions as to colour, style and cost that the tenant ought to have understood the landlords were entitled to make.
I accepted the tenant’s evidence about his expenditure on that work but awarded only 50% of his expenditure as compensation, to recognise that the benefit to the landlords of that painting having been paid for by tenant was reduced because they were deprived of the opportunity to make choices about the nature and cost of that work.
Reviewing that assessment, it remains my view that some allowance for those factors is required in an objective assessment of the benefit gained by the landlords from the tenant’s expenditure. However, having regard to the clear requirement in the appeal Decision that I, “...must assume there is some incontrovertible benefit to the landlord in having necessary repairs carried out to a house”...I find that undue allowance was made for those considerations.
As noted in discussing the claims for appliance replacement, this is not the landlords’ home but a rental property and the fundamental benefit to the landlords was in having their maintenance and repair obligations met at the tenant’s cost.
Assessing the benefit to the landlord of having that obligation met at the tenant’s expense but having it met in a way that was not of their choosing, I find that the tenant should be compensated $16,400.00 of the $20,500.00 spent. Leak
The full repair cost was awarded and does not require review. Electrical work and materials
These claims were dismissed as I did not find it proved that the landlords benefitted from those purchases by the tenant. No reassessment of compensation is accordingly required. Rent payments
I note that in calculating the final balance payable by the tenant, allowance must be made for the sum paid pursuant to paragraph [18](d) of the appeal Decision that required Martelli McKegg (the tenant’s solicitors) to pay the sum of $11,750.00 plus any interest, to the solicitors for the landlord.

Claims and awards in Tenancy Tribunal application 4282907 — net $56,878.07 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 17 May 2022	$96,198.57		Rent arrears to 17 May 2022
Compensation: Bathroom floor		$4,500.00	Bathroom floor
Compensation: HRV Filter		$960.00	HRV Filter
Compensation: HRV motor		$800.00	HRV motor
Compensation: Range Hood		$585.00	Range Hood
Compensation: Gas Burner		$650.00	Gas Burner
Compensation: Bathroom sink		$550.00	Bathroom sink
Compensation: Dishwasher		$522.00	Dishwasher
Compensation: Interior repaint		$3,600.00	Interior repaint
Compensation: Exterior repaint		$6,400.00	Exterior repaint
Compensation: Septic tank field tower		$6,325.00	Septic tank field tower
Compensation: Ceiling leak repair		$500.00	Ceiling leak repair
Compensation: Re-lay drains		$5,750.00	Re-lay drains
Compensation: Roof wash and paint		$6,400.00	Roof wash and paint
Compensation: Septic tank clean		$621.00	Septic tank clean
Compensation: Drain inspection		$295.00	Drain inspection
Compensation: Replace septic tank		$862.50	Replace septic tank
Total award	$96,198.57	$39,320.50
Net award	$56,878.07
Total payable by Tenant to Landlord	$56,878.07

Order

Order 2 of the Tribunal’s Order in these proceedings dated 14 June 2022 (“the Tribunal Order”), is replaced with the following: Xue Chen must pay Kyung Won Lee, Heung Soon Kang and Jung Nam Lee $56,878.07 immediately, as follows:

Reasons

I first apologise to the parties for the delay in this decision being made. I have been on extended leave and reconsideration of the Order needed to be undertaken by me, not by another adjudicator in my absence.
An appeal against the Tribunal Order was lodged and was determined by an Order of the District Court dated 19 July 2023 in Chen v Kang [2023] NZDC 14956 (“the appeal Decision”)
The appeal Decision concerned the findings in the Tribunal Order determining the tenant’s claims for compensation for unjust enrichment. It found that while the applicable principles were correctly stated, I had misdirected myself in finding (paragraph [47] of the Tribunal Order) that, “...any moneys claimed by way of unjust enrichment must be less than the amount spent by the claimant..”
The appeal Decision instead finds that (paragraphs [11] – [14]), “....there is absolutely no rule that the unjust enrichment cannot be the exact sum expended by the plaintiff........so it is wrong as a matter of law to discount the claims made by the tenant by any percentage or assume that the full costs cannot be recovered. The full cost can be recovered in full if the adjudicator assesses that this is a proper measure of the landlord’s loss – for example the money spent on appliances could potentially be recovered in full if the Adjudicator was satisfied that the tenant had installed a moderately priced range of appliances.....It may be that in fairness to the tenant, the landlord should be responsible for 100 percent of some of the claims. The test is an objective analysis of benefit with the possibility of some subjective adjustment in favour of the landlord.”
The appeal decision directed that I reconsider the tenant’s claims for unjust enrichment to, “...assess the correct compensation without applying a global discount.” and that I, “...must assume there is some incontrovertible benefit to the landlord in having necessary repairs carried out to a house.”
I have considered whether a further hearing or submissions from the parties should be directed. Having reviewed the file and revisited the Tribunal Order, I am satisfied that I can properly apply the legal principles, as directed in the appeal Decision to my findings, to fairly conduct the reassessment directed without hearing further from the parties.
The reassessment of each of the claims is set out below. Bathroom Floor
I was satisfied that the timber floor in the bathroom required replacement and that it was a repair/ maintenance item which the landlords would have had to pay for if the tenant hadn’t had it done.
I accepted the tenant’s evidence that the cost to him of that work being done was $4,500.00. I applied a 25% “discount” to recognise that, in breach of s.40(1)(d), “........by not notifying the landlords or seeking their prior approval, the tenant has deprived the landlords of the opportunity to have the work done on their terms and at a cost negotiated by them ie. that the benefit received by the landlord may be less than the cost incurred by the tenant.”
In re-assessing the claim in light of the legal principles set out in the appeal Decision I find that in the absence of an evidential basis for assuming that the landlords did not receive the full value of that repair/ maintenance work, such a discount is not warranted and the compensation awarded is adjusted to $4,500.00. Fireplace replacement/ Heat pump installation
These claims were dismissed as they arose from the installation of fixtures (see s.42(1) and in terms of the appeal Decision do not require reconsideration. HRV System
I accepted the tenant’s evidence regarding his expenditure on the system which it was the landlords’ responsibility to maintain.
I found that the landlords had obtained the benefit of having work they were responsible for paid by the tenant.
Again, in assessing the compensation amount, I allowed a 25% “discount” to recognise that in my view the landlords should have had the opportunity to arrange that work on their terms.
For the same reasons as given in paragraph 11, such a discount should not have been applied and the tenant should be awarded the full extent of his expenditure. Appliance replacement
I accepted the tenant’s evidence about the need for the rangehood, gas burner and dishwasher to be replaced and the sums paid by him.
I found that the landlords had received a benefit from the tenant having replaced appliances they otherwise would need to have bought but had lost the opportunity to replace them with items of their choosing, that could have been adequate to meet their obligations, but at a lower cos. I awarded the tenant 50% of his expenditure.
I found that the same principles apply to replacement of the bathroom sink.
Having reconsidered these claims, I remain of the view that in assessing the benefit to the landlords of the tenant having bought those appliances, without consultation, I should take into account that the landlords had no need for new appliances to have been bought. The landlords do not gain the direct benefit of using those new appliances. The landlords’ benefit is that their obligation to have those items provided in their rental premises has been met, at the tenant’s expense.
Unlike where necessary repairs or maintenance are carried out, their obligation could equally have been met with adequate but second-hand appliances, at lesser cost.
In my view the awards made in respect of these claims remain appropriate. Drains and septic tank
I found that maintaining the drains and septic tank were the landlords’ obligation and that the landlords had gained a benefit from the tenant having paid for fundamental work that they would otherwise have had to get done themselves.
As with the compensation awarded for the flooring and HRV system, I allowed a 25% percent discount in recognition that the landlords had been deprived of the opportunity to negotiate their own terms for the work.
For the reasons applied above that discount is inappropriate and the tenant’s full expenditure should be awarded. Tree removal
I did not find it proved that the landlords had obtained any benefit from the tenant having that work done.
That claim was dismissed and does not require a reassessment. Painting – Interior/ Exterior/ Roof
I found that the work was needed and would have had to be undertaken by the landlords if the tenant hadn’t had it done, for the house to be kept in a reasonable state of repair.
My assessment was that unlike the servicing of infrastructure like septic tanks and drains or HRV systems, repainting involved a range of decisions as to colour, style and cost that the tenant ought to have understood the landlords were entitled to make.
I accepted the tenant’s evidence about his expenditure on that work but awarded only 50% of his expenditure as compensation, to recognise that the benefit to the landlords of that painting having been paid for by tenant was reduced because they were deprived of the opportunity to make choices about the nature and cost of that work.
Reviewing that assessment, it remains my view that some allowance for those factors is required in an objective assessment of the benefit gained by the landlords from the tenant’s expenditure. However, having regard to the clear requirement in the appeal Decision that I, “...must assume there is some incontrovertible benefit to the landlord in having necessary repairs carried out to a house”...I find that undue allowance was made for those considerations.
As noted in discussing the claims for appliance replacement, this is not the landlords’ home but a rental property and the fundamental benefit to the landlords was in having their maintenance and repair obligations met at the tenant’s cost.
Assessing the benefit to the landlord of having that obligation met at the tenant’s expense but having it met in a way that was not of their choosing, I find that the tenant should be compensated $16,400.00 of the $20,500.00 spent. Leak
The full repair cost was awarded and does not require review. Electrical work and materials
These claims were dismissed as I did not find it proved that the landlords benefitted from those purchases by the tenant. No reassessment of compensation is accordingly required. Rent payments
I note that in calculating the final balance payable by the tenant, allowance must be made for the sum paid pursuant to paragraph [18](d) of the appeal Decision that required Martelli McKegg (the tenant’s solicitors) to pay the sum of $11,750.00 plus any interest, to the solicitors for the landlord.

Tenancy Tribunal case 4282907 — Rent arrears at 348 Henderson Valley Road, Henderson Valley, Auckland

At a glance

Tenancy Tribunal case 4282907 — Rent arrears at 348 Henderson Valley Road, Henderson Valley, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions