What was the outcome of Tenancy Tribunal case 4589094?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4589094?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4589094?

The primary dispute was Leaks. Related themes: State of repair, Healthy homes, Exemplary damages, Unit Titles.

Where can I read the official tribunal order for case 4589094?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9302527-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4589094?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4589094?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4589094?

The primary dispute was Leaks. Related themes: State of repair, Healthy homes, Exemplary damages, Unit Titles.

Where can I read the official tribunal order for case 4589094?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9302527-Tenancy_Tribunal_Order.pdf.

19C Baffin Grove, Kingston, Wellington 6021 Tenancy Tribunal Case 4589094 — Leaks

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19C Baffin Grove, Kingston, Wellington 6021 Tenancy Tribunal Case 4589094 — Leaks | TenantCheck

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 4589094. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

No suppression orders apply around publication of this decision.
The claims for the boxed eaves and the underfloor insulation are struck out.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenant has lived at the tenancy premises since 2016. There are three flats in the building. The tenant’s flat is a bedsit arrangement, with a separate kitchen and bathroom, and a parking space. There was a change of property manager in May last year, with Oxygen taking over from the previous landlord.
This is the third application abut this tenancy that I know about, and both parties have referred me to orders made in January 2022 and in October 2022. The tenant has filed this latest application because he has concerns about the flat, including that the boxed eaves are not safe, that it does not meet building code, that underfloor insulation should be installed, that there are cockroaches, there are draughts, and the latest rent increase means he is paying more than market rent. The questions I have to decide are: • Can I decide the claims about the boxed eaves and the underfloor insulation? • Is there any outstanding maintenance? • Does the flat meet the Healthy Homes Standards for draught stopping? • Is the tenant paying more than market rent for the flat? • Should the tenant get compensation and exemplary damages?

Can I decide the claims about the boxed eaves and the underfloor insulation?

The tenant has previously brought claims in the Tribunal about the boxed eaves and the underfloor insulation. Both claims were considered fully by another adjudicator and dismissed in [2022] NZTT 4323025. The tenant confirmed today that he has brought the same claims again in this current application, but with better evidence.
The High Court decision of Muir, Bradbury, Peebles and Maud v Commissioner of Inland Revenue, is relevant here, and in particular to the paragraphs about striking out and res judicata. See CIV-2011- 404-1132 [2015] NZHC 792.
The High Court in Body Corporate 375933 v Tenancy Tribunal and Wellington Waterfront Luxury Apartment Limited has confirmed the Tribunal’s ability to strike out applications in appropriate cases. See [2017] NZHC 1619
As discussed in the Muir decision, there is a legal principle, known as the ‘rule of Henderson v Henderson’. This principle is that a party is required to present their entire case during the course of legal proceedings. The act of raising a line of argument in subsequent proceedings which could and should have been raised in the earlier proceedings constitutes an abuse of process and leaves the subsequent proceedings vulnerable to being struck out. The judgment states – “Where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances), permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” See Henderson v Henderson [1843] 3 Hare 100.
I find that hearing the claims for the boxed eaves and the underfloor insulation again would mean prolonged litigation, and the possibility of different or contradictory findings, neither of which are in the interests of justice. Applying the rule in Henderson v Henderson, I find the tenant’s claims for the eaves and the insulation should be struck out.
I note the rule in Henderson v Henderson does do not apply in special cases. This is explained in the Muir decision as being when there would be a clear injustice, such as where significant new evidence has become available that could not with reasonable diligence have been adduced in the earlier proceedings. The tenant having better evidence now – when that could have been presented at the first hearing – is not a special case warranting a departure from the general rule.

Is there any outstanding maintenance?

The tenant claims that the landlord has breached its obligations under section 45 of the Residential Tenancies Act 1986 (RTA) to provide and maintain the premises in a reasonable state of repair, and to comply with any relevant building regulations.
The tenant said there was an infestation of cockroaches, coming in part from cracked sealant around a sewer pipe. In response the landlord provided supporting documentation to show a plumber went and sealed the top of an exterior sewer ventilation pipe. This was done promptly. The tenant said the sealant did not hold, and there is still a gap at the top of the pipe.
This is the tenant’s claim to prove. I have no evidence from the tenant that applying sealant is not safe or compliant. The plumber who went to the tenancy premises should be given a chance to remedy the sealant. I am confident the landlord will organise this without the Tribunal making a work order. The tenant has not proved there was a breach by the landlord and this part of the claim is dismissed.
I was also provided with a copy of the invoice from a pest control company to show the building exterior was dusted to prevent native cockroaches. I find this work was done promptly after the tenant emailed the landlord with his maintenance request. I find there was no breach by the landlord here.
The tenant said there was a Buchan trap outside which was not properly sealed, and which should have extended above the roofline to prevent the smell of sewerage being blown into his flat. The tenant referred me to the building code NZBC / G13.3.3 – G13.3.4 and G15 3.3, which he said specified that the Buchan trap should be extended above the roof line. I checked these parts of the building code after the hearing. They simply state that any foul water must be connected to the sewerage system if there is one, or to another system if there is not (such as a septic tank). G15 3.3 refers to solid waste (such as rubbish) and is not relevant. There is no mention of Buchan traps or sewerage pipes extending above the roof line. I note the sewage from the flats does not go into a septic tank system. The tenant said that there is a persistent smell of sewerage, despite the work done since his application was filed.
The landlord found out about this request for work when she read the application filed by the tenant. She arranged for a plumbing and drainage business to attend to the Buchan trap and to make sure there were no issues with the sewerage. Their information, which was obtained by going to the site and using cctv in the pipe, states the drain is in a sound condition. They did locate a recent blockage out on the main road which has been reported to Wellington Water. They also put a cap on the Buchan trap.
This is the tenant’s claim to prove. I have not been provided with any supporting information to suggest the Buchan trap does not meet building code. The plumbers were specifically asked to check there was no breach of building codes and there is nothing in the report which suggests the drain/Buchan trap is not safe. The landlord has the better evidence here and this part of the claim is dismissed.

Does the flat meet the Healthy Homes Standards for draught stopping?

The tenant claims that the landlord has breached the obligations under section 45(1)(bb) of the RTA, specifically that there is a breach of the Healthy Homes Standards (HHS). The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The tenant provided good evidence by way of photos showing unreasonable gaps in the windows and doors because the wooden joinery has warped. The landlord first found out about this when reading the tenant’s application. She promptly arranged repairs and for more draft stopping to be done at the flat. I have been provided with a report which states there are no unreasonable gaps any more. The draught stopping was tested with a battery powered blower going at full speed.
I find it is likely that draught stopping will have to be repeated by the landlord over time, because joinery changes and because the draughtproofing material used needs to be replaced. So long as new draughtproofing is done in a timely manner, then this is a maintenance issue. I am not persuaded there was a breach of the HHS.
The tenant submitted that there are still draughts. In support of his claim he provided me with one photo of a gap at the top of the front door, and a photo of the kitchen window. It is possible there is draught stopping around both which I cannot see in the photo, and there has to be a gap for the door to open and close properly. I also note that new window latches were put on the kitchen window, and the tenant said this has improved the kitchen. I am more persuaded by the draught stopper’s report than by these two photos. The claim for breach of the HHS is not proved and it is dismissed.

Is the tenant paying more than market rent for the flat?

The tenant has applied for a market rent assessment. His rent has increased by $45 a week to $330, and he does not believe this is a fair rent for the flat, which he submitted is cold, needs maintenance, and is draughty. Sections 25(1) and (3) RTA provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’. Some earlier Tribunal cases suggested a 'rule of thumb' of 10% over market rent. However, a rule of thumb based on a specific percentage has no legal status and is not appropriate where rents rise at a rate significantly above income inflation.
The test for market rent is the amount “a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy”.
The concept of the 'market' is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations. These terms are not defined by the Act. The Oxford English dictionary defines willing as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and reasonable as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".
The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.
The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.
The tenant referred me to the Tenancy Services statistics and submitted that it was difficult to compare because he is in a bedsit, not a flat, and a bedsit is not provided for in the market rent data. He did refer me to the statistics for a one bedroom flat in Mornington, which is the suburb next door, which showed a lower quartile rent of $330 based on 27 bonds lodged. He submitted his bedsit would be cheaper to rent than a one bedroom flat.
The landlord provided me with an advertisement on trade me for a bedsit in Kingston with an asking price of $395 per week and referred me to the Tenancy Services information for Mornington.
This is the tenant’s claim to prove. Having looked at the photos I find this bedsit flat is comparable to a one bedroom flat because the tenant does not have to share with others, he has his own kitchen ̧ bathroom and laundry facilities inside the flat, he has parking, and there is a small amount of outside space. I have not found there are any outstanding maintenance issues, and the flat complies with the HHS. I find a willing tenant might reasonably expect to pay $330 to live there, and the Tenancy Services statistics support this finding. The claim the rent is in excess of market rent is dismissed.

Should the tenant get compensation and exemplary damages?

The tenant has not proved any of the claims, so compensation and exemplary damages are not allowed. Other orders
No order is made for the filing fee.
The tenant’s application for suppression is not allowed because the tenant is not the most successful party.

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 4589094. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

No suppression orders apply around publication of this decision.
The claims for the boxed eaves and the underfloor insulation are struck out.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenant has lived at the tenancy premises since 2016. There are three flats in the building. The tenant’s flat is a bedsit arrangement, with a separate kitchen and bathroom, and a parking space. There was a change of property manager in May last year, with Oxygen taking over from the previous landlord.
This is the third application abut this tenancy that I know about, and both parties have referred me to orders made in January 2022 and in October 2022. The tenant has filed this latest application because he has concerns about the flat, including that the boxed eaves are not safe, that it does not meet building code, that underfloor insulation should be installed, that there are cockroaches, there are draughts, and the latest rent increase means he is paying more than market rent. The questions I have to decide are: • Can I decide the claims about the boxed eaves and the underfloor insulation? • Is there any outstanding maintenance? • Does the flat meet the Healthy Homes Standards for draught stopping? • Is the tenant paying more than market rent for the flat? • Should the tenant get compensation and exemplary damages?

Can I decide the claims about the boxed eaves and the underfloor insulation?

The tenant has previously brought claims in the Tribunal about the boxed eaves and the underfloor insulation. Both claims were considered fully by another adjudicator and dismissed in [2022] NZTT 4323025. The tenant confirmed today that he has brought the same claims again in this current application, but with better evidence.
The High Court decision of Muir, Bradbury, Peebles and Maud v Commissioner of Inland Revenue, is relevant here, and in particular to the paragraphs about striking out and res judicata. See CIV-2011- 404-1132 [2015] NZHC 792.
The High Court in Body Corporate 375933 v Tenancy Tribunal and Wellington Waterfront Luxury Apartment Limited has confirmed the Tribunal’s ability to strike out applications in appropriate cases. See [2017] NZHC 1619
As discussed in the Muir decision, there is a legal principle, known as the ‘rule of Henderson v Henderson’. This principle is that a party is required to present their entire case during the course of legal proceedings. The act of raising a line of argument in subsequent proceedings which could and should have been raised in the earlier proceedings constitutes an abuse of process and leaves the subsequent proceedings vulnerable to being struck out. The judgment states – “Where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances), permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” See Henderson v Henderson [1843] 3 Hare 100.
I find that hearing the claims for the boxed eaves and the underfloor insulation again would mean prolonged litigation, and the possibility of different or contradictory findings, neither of which are in the interests of justice. Applying the rule in Henderson v Henderson, I find the tenant’s claims for the eaves and the insulation should be struck out.
I note the rule in Henderson v Henderson does do not apply in special cases. This is explained in the Muir decision as being when there would be a clear injustice, such as where significant new evidence has become available that could not with reasonable diligence have been adduced in the earlier proceedings. The tenant having better evidence now – when that could have been presented at the first hearing – is not a special case warranting a departure from the general rule.

Is there any outstanding maintenance?

The tenant claims that the landlord has breached its obligations under section 45 of the Residential Tenancies Act 1986 (RTA) to provide and maintain the premises in a reasonable state of repair, and to comply with any relevant building regulations.
The tenant said there was an infestation of cockroaches, coming in part from cracked sealant around a sewer pipe. In response the landlord provided supporting documentation to show a plumber went and sealed the top of an exterior sewer ventilation pipe. This was done promptly. The tenant said the sealant did not hold, and there is still a gap at the top of the pipe.
This is the tenant’s claim to prove. I have no evidence from the tenant that applying sealant is not safe or compliant. The plumber who went to the tenancy premises should be given a chance to remedy the sealant. I am confident the landlord will organise this without the Tribunal making a work order. The tenant has not proved there was a breach by the landlord and this part of the claim is dismissed.
I was also provided with a copy of the invoice from a pest control company to show the building exterior was dusted to prevent native cockroaches. I find this work was done promptly after the tenant emailed the landlord with his maintenance request. I find there was no breach by the landlord here.
The tenant said there was a Buchan trap outside which was not properly sealed, and which should have extended above the roofline to prevent the smell of sewerage being blown into his flat. The tenant referred me to the building code NZBC / G13.3.3 – G13.3.4 and G15 3.3, which he said specified that the Buchan trap should be extended above the roof line. I checked these parts of the building code after the hearing. They simply state that any foul water must be connected to the sewerage system if there is one, or to another system if there is not (such as a septic tank). G15 3.3 refers to solid waste (such as rubbish) and is not relevant. There is no mention of Buchan traps or sewerage pipes extending above the roof line. I note the sewage from the flats does not go into a septic tank system. The tenant said that there is a persistent smell of sewerage, despite the work done since his application was filed.
The landlord found out about this request for work when she read the application filed by the tenant. She arranged for a plumbing and drainage business to attend to the Buchan trap and to make sure there were no issues with the sewerage. Their information, which was obtained by going to the site and using cctv in the pipe, states the drain is in a sound condition. They did locate a recent blockage out on the main road which has been reported to Wellington Water. They also put a cap on the Buchan trap.
This is the tenant’s claim to prove. I have not been provided with any supporting information to suggest the Buchan trap does not meet building code. The plumbers were specifically asked to check there was no breach of building codes and there is nothing in the report which suggests the drain/Buchan trap is not safe. The landlord has the better evidence here and this part of the claim is dismissed.

Does the flat meet the Healthy Homes Standards for draught stopping?

The tenant claims that the landlord has breached the obligations under section 45(1)(bb) of the RTA, specifically that there is a breach of the Healthy Homes Standards (HHS). The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The tenant provided good evidence by way of photos showing unreasonable gaps in the windows and doors because the wooden joinery has warped. The landlord first found out about this when reading the tenant’s application. She promptly arranged repairs and for more draft stopping to be done at the flat. I have been provided with a report which states there are no unreasonable gaps any more. The draught stopping was tested with a battery powered blower going at full speed.
I find it is likely that draught stopping will have to be repeated by the landlord over time, because joinery changes and because the draughtproofing material used needs to be replaced. So long as new draughtproofing is done in a timely manner, then this is a maintenance issue. I am not persuaded there was a breach of the HHS.
The tenant submitted that there are still draughts. In support of his claim he provided me with one photo of a gap at the top of the front door, and a photo of the kitchen window. It is possible there is draught stopping around both which I cannot see in the photo, and there has to be a gap for the door to open and close properly. I also note that new window latches were put on the kitchen window, and the tenant said this has improved the kitchen. I am more persuaded by the draught stopper’s report than by these two photos. The claim for breach of the HHS is not proved and it is dismissed.

Is the tenant paying more than market rent for the flat?

The tenant has applied for a market rent assessment. His rent has increased by $45 a week to $330, and he does not believe this is a fair rent for the flat, which he submitted is cold, needs maintenance, and is draughty. Sections 25(1) and (3) RTA provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’. Some earlier Tribunal cases suggested a 'rule of thumb' of 10% over market rent. However, a rule of thumb based on a specific percentage has no legal status and is not appropriate where rents rise at a rate significantly above income inflation.
The test for market rent is the amount “a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy”.
The concept of the 'market' is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations. These terms are not defined by the Act. The Oxford English dictionary defines willing as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and reasonable as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".
The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.
The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.
The tenant referred me to the Tenancy Services statistics and submitted that it was difficult to compare because he is in a bedsit, not a flat, and a bedsit is not provided for in the market rent data. He did refer me to the statistics for a one bedroom flat in Mornington, which is the suburb next door, which showed a lower quartile rent of $330 based on 27 bonds lodged. He submitted his bedsit would be cheaper to rent than a one bedroom flat.
The landlord provided me with an advertisement on trade me for a bedsit in Kingston with an asking price of $395 per week and referred me to the Tenancy Services information for Mornington.
This is the tenant’s claim to prove. Having looked at the photos I find this bedsit flat is comparable to a one bedroom flat because the tenant does not have to share with others, he has his own kitchen ̧ bathroom and laundry facilities inside the flat, he has parking, and there is a small amount of outside space. I have not found there are any outstanding maintenance issues, and the flat complies with the HHS. I find a willing tenant might reasonably expect to pay $330 to live there, and the Tenancy Services statistics support this finding. The claim the rent is in excess of market rent is dismissed.

Should the tenant get compensation and exemplary damages?

The tenant has not proved any of the claims, so compensation and exemplary damages are not allowed. Other orders
No order is made for the filing fee.
The tenant’s application for suppression is not allowed because the tenant is not the most successful party.

Tenancy Tribunal case 4589094 — Leaks at 19C Baffin Grove, Kingston, Wellington 6021

At a glance

Tenancy Tribunal case 4589094 — Leaks at 19C Baffin Grove, Kingston, Wellington 6021

At a glance

Claims & awards

Order

Reasons

Can I decide the claims about the boxed eaves and the underfloor insulation?

Is there any outstanding maintenance?

Does the flat meet the Healthy Homes Standards for draught stopping?

Is the tenant paying more than market rent for the flat?

Should the tenant get compensation and exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Can I decide the claims about the boxed eaves and the underfloor insulation?

Is there any outstanding maintenance?

Does the flat meet the Healthy Homes Standards for draught stopping?

Is the tenant paying more than market rent for the flat?

Should the tenant get compensation and exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions