What was the outcome of Tenancy Tribunal case 4520442?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4520442?

Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4520442?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4520442?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9200930-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4520442?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4520442?

Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4520442?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4520442?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9200930-Tribunal_Order.pdf.

304 Jones Road, Rolleston, RD 5, Rolleston 7675 Tenancy Tribunal Case 4520442 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4520442 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages for breaches of the Health Homes Standards	$1,500.00	Exemplary damages for breaches of the Health Homes Standards
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Tony Stuart as trustee of the Tony Stuart Family Trust must pay Craig Lawrence Harpur $1,520.44 immediately, calculated as shown in table below:
The application for compensation and/or exemplary damages for wrongful termination of the tenancy is dismissed.

Reasons

Both parties attended the hearing today. Background
I first began hearing the application on 15 June 2023. I adjourned that hearing so the parties could provide further evidence addressing whether there was underfloor insulation at the premises.
Mr Harpur provided video evidence that he presented today. Mr Stuart provided no further evidence.
The tenancy was a joint periodic tenancy. Mr Harpur and Mercy Grace were the named tenants. Ms Grace is known as Lilly.
Ms Grace gave notice to end the tenancy which Mr Stuart accepted. Mr Harpur wanted to remain in the tenancy. He sought a variation to the tenancy agreement to allow him to remain as the sole tenant. Mr Stuart did not agree to that.
Mr Stuart vacated the tenancy on 1 April 2023 in line with the notice period Ms Grace gave. She vacated on 4 March 2023.
Mr Harpur has applied for compensation and/or exemplary damages for what he says was the wrongful termination of the tenancy. He also seeks exemplary damages for alleged breaches of the Healthy Homes Standards (HHS). Issues
The issues to be determined by the Tribunal are these: •Was there a wrongful termination of the tenancy? If so, should the Tribunal award Mr Harpur compensation and/or exemplary damages? •Was there a breach of the HHS? •If there was, should the Tribunal award Mr Harpur exemplary damages? Was there a wrongful termination of the tenancy? If so, should the

Tribunal award Mr Harpur compensation and/or exemplary damages?

Mr Stuart did not terminate the tenancy; Mr Grace did. Although Mr Harpur submitted that she gave notice to end the tenancy on 7 March 2023, I find it probable that she gave notice on 3 March. The Facebook Messenger message Mr Harpur produced in evidence dated 8 March 2023 refers to Ms Grace giving notice on 3 March. Even if the strict requirements of that notice were not met, the landlord accepted the notice, which he was able to do.
Before 3 March, Mr Harpur was aware that Ms Grace was leaving the tenancy. He asked the landlord to remove her name from the tenancy agreement leaving him as the sole tenant. That was a request to vary the contract which Mr Stuart did not agree to.
Though disappointing for Mr Harpur, the landlord did not unlawfully terminate the tenancy so the Tribunal cannot award exemplary damages; nor is it minded to award compensation in the absence of a clear breach.
There was a more complex background to this tenancy of a domestic nature that I need not go into. That led to Ms Grace terminating the tenancy, an action the landlord accepted. The notice period ran from 3 March 2023.
I dismiss the application for compensation and/or exemplary damages arising from the termination of the tenancy.

Was there a breach of the HHS?

Mr Harpur has produced evidence that shows there was no underfloor insulation at the premises. Mr Stuart accepted that. He said he had never looked under the floor.
At the first hearing, Mr Stuart accepted that there was no externally vented extraction system in the kitchen.
To his credit, the ceiling insulation was topped up and the bathroom extraction fan upgraded.
There was no HHS assessment ever completed. Although not a statutory requirement, an assessment by a contracted assessor would have highlighted any non-compliance issues.
The HHS were enacted to ensure that rental properties have minimum requirements for insulation, and the extraction of moisture from kitchens and bathrooms to keep the premises warmer and drier. There are other standards too, but they are not at issue here.
I find that the landlord failed to ensure that there was underfloor insulation and an adequate externally vented moisture extraction system in the kitchen. These breaches of the HHS amount to unlawful acts.

Should the Tribunal award Mr Harpur exemplary damages?

Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest.
Case law has established that if a party decides to make no efforts or enquiry as to whether a statutory requirement is met, that can show intention. Mr Stuart admitted that he had never checked whether there was underfloor insulation. Yet at the first hearing he said there was underfloor insulation in place when he purchased the premises about one year before the hearing. He knew there was no extraction fan in the kitchen.
I find that the criteria for an award of exemplary damages are met in this case. Mr Stuart’s lack of action and enquiry amounts to an intentional act; it had an effect on the tenant (the premises were not properly insulated, and the kitchen had no extraction fan); it was against the tenant’s interests; and it is against the public interest for landlords not to comply with their statutory responsibilities.
The tenancy lasted about 7.5 months. I have taken that into account.
I award the tenant exemplary damages of $1,500.00 for this unlawful act (the maximum amount being $7,200.00). Result
The landlord will pay the tenant $1,520.44 comprising exemplary damages of $1,500.00 and the filing fee of $20.44.
The application for compensation and/or exemplary damages for an unlawful termination of the tenancy is dismissed. Name suppression
Upon my enquiry, neither party sought a name suppression order.

Claims and awards in Tenancy Tribunal application 4520442 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages for breaches of the Health Homes Standards	$1,500.00	Exemplary damages for breaches of the Health Homes Standards
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Tony Stuart as trustee of the Tony Stuart Family Trust must pay Craig Lawrence Harpur $1,520.44 immediately, calculated as shown in table below:
The application for compensation and/or exemplary damages for wrongful termination of the tenancy is dismissed.

Reasons

Both parties attended the hearing today. Background
I first began hearing the application on 15 June 2023. I adjourned that hearing so the parties could provide further evidence addressing whether there was underfloor insulation at the premises.
Mr Harpur provided video evidence that he presented today. Mr Stuart provided no further evidence.
The tenancy was a joint periodic tenancy. Mr Harpur and Mercy Grace were the named tenants. Ms Grace is known as Lilly.
Ms Grace gave notice to end the tenancy which Mr Stuart accepted. Mr Harpur wanted to remain in the tenancy. He sought a variation to the tenancy agreement to allow him to remain as the sole tenant. Mr Stuart did not agree to that.
Mr Stuart vacated the tenancy on 1 April 2023 in line with the notice period Ms Grace gave. She vacated on 4 March 2023.
Mr Harpur has applied for compensation and/or exemplary damages for what he says was the wrongful termination of the tenancy. He also seeks exemplary damages for alleged breaches of the Healthy Homes Standards (HHS). Issues
The issues to be determined by the Tribunal are these: •Was there a wrongful termination of the tenancy? If so, should the Tribunal award Mr Harpur compensation and/or exemplary damages? •Was there a breach of the HHS? •If there was, should the Tribunal award Mr Harpur exemplary damages? Was there a wrongful termination of the tenancy? If so, should the

Tribunal award Mr Harpur compensation and/or exemplary damages?

Mr Stuart did not terminate the tenancy; Mr Grace did. Although Mr Harpur submitted that she gave notice to end the tenancy on 7 March 2023, I find it probable that she gave notice on 3 March. The Facebook Messenger message Mr Harpur produced in evidence dated 8 March 2023 refers to Ms Grace giving notice on 3 March. Even if the strict requirements of that notice were not met, the landlord accepted the notice, which he was able to do.
Before 3 March, Mr Harpur was aware that Ms Grace was leaving the tenancy. He asked the landlord to remove her name from the tenancy agreement leaving him as the sole tenant. That was a request to vary the contract which Mr Stuart did not agree to.
Though disappointing for Mr Harpur, the landlord did not unlawfully terminate the tenancy so the Tribunal cannot award exemplary damages; nor is it minded to award compensation in the absence of a clear breach.
There was a more complex background to this tenancy of a domestic nature that I need not go into. That led to Ms Grace terminating the tenancy, an action the landlord accepted. The notice period ran from 3 March 2023.
I dismiss the application for compensation and/or exemplary damages arising from the termination of the tenancy.

Was there a breach of the HHS?

Mr Harpur has produced evidence that shows there was no underfloor insulation at the premises. Mr Stuart accepted that. He said he had never looked under the floor.
At the first hearing, Mr Stuart accepted that there was no externally vented extraction system in the kitchen.
To his credit, the ceiling insulation was topped up and the bathroom extraction fan upgraded.
There was no HHS assessment ever completed. Although not a statutory requirement, an assessment by a contracted assessor would have highlighted any non-compliance issues.
The HHS were enacted to ensure that rental properties have minimum requirements for insulation, and the extraction of moisture from kitchens and bathrooms to keep the premises warmer and drier. There are other standards too, but they are not at issue here.
I find that the landlord failed to ensure that there was underfloor insulation and an adequate externally vented moisture extraction system in the kitchen. These breaches of the HHS amount to unlawful acts.

Should the Tribunal award Mr Harpur exemplary damages?

Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest.
Case law has established that if a party decides to make no efforts or enquiry as to whether a statutory requirement is met, that can show intention. Mr Stuart admitted that he had never checked whether there was underfloor insulation. Yet at the first hearing he said there was underfloor insulation in place when he purchased the premises about one year before the hearing. He knew there was no extraction fan in the kitchen.
I find that the criteria for an award of exemplary damages are met in this case. Mr Stuart’s lack of action and enquiry amounts to an intentional act; it had an effect on the tenant (the premises were not properly insulated, and the kitchen had no extraction fan); it was against the tenant’s interests; and it is against the public interest for landlords not to comply with their statutory responsibilities.
The tenancy lasted about 7.5 months. I have taken that into account.
I award the tenant exemplary damages of $1,500.00 for this unlawful act (the maximum amount being $7,200.00). Result
The landlord will pay the tenant $1,520.44 comprising exemplary damages of $1,500.00 and the filing fee of $20.44.
The application for compensation and/or exemplary damages for an unlawful termination of the tenancy is dismissed. Name suppression
Upon my enquiry, neither party sought a name suppression order.

Tenancy Tribunal case 4520442 — Exemplary damages at 304 Jones Road, Rolleston, RD 5, Rolleston 7675

At a glance

Tenancy Tribunal case 4520442 — Exemplary damages at 304 Jones Road, Rolleston, RD 5, Rolleston 7675

At a glance

Award balance

Claims & awards

Order

Reasons

Tribunal award Mr Harpur compensation and/or exemplary damages?

Was there a breach of the HHS?

Should the Tribunal award Mr Harpur exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Tribunal award Mr Harpur compensation and/or exemplary damages?

Was there a breach of the HHS?

Should the Tribunal award Mr Harpur exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions