What was the outcome of Tenancy Tribunal case 4616773?

The tribunal order states: Ali Vandaei must pay Jake Sturrock $502.05 immediately, calculated as shown

How much money was awarded in case 4616773?

Cleaning: $100.00 awarded to tenant; Compensation: Hot Water Failures: $900.00 awarded to tenant; Compensation: Shower Ceiling Hole: $100.00 awarded to landlord; Property Damage: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Credit: $285.71 awarded to tenant

What type of tenancy dispute was case 4616773?

The primary dispute was Exemplary damages. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4616773?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9972119-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4616773?

The tribunal order states: Ali Vandaei must pay Jake Sturrock $502.05 immediately, calculated as shown

How much money was awarded in case 4616773?

Cleaning: $100.00 awarded to tenant; Compensation: Hot Water Failures: $900.00 awarded to tenant; Compensation: Shower Ceiling Hole: $100.00 awarded to landlord; Property Damage: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Credit: $285.71 awarded to tenant

What type of tenancy dispute was case 4616773?

The primary dispute was Exemplary damages. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4616773?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9972119-Tribunal_Order.pdf.

19 Beach Road, Castor Bay, Auckland 0620 Tenancy Tribunal Case 4616773 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4616773 — net $1,506.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation: shower ceiling hole	$100.00		shower ceiling hole
Rent credit		$285.71	Rent credit
Compensation: Hot water failures		$900.00	Hot water failures
Exemplary damages: Failure to appointment agent		$300.00	Failure to appointment agent
Compensation for cleaning		$100.00	Compensation for cleaning
Filing fee reimbursement (tenants		$20.44	Filing fee reimbursement (tenants
Total award	$100.00	$1,606.15
Net award		$1,506.15
Total payable by Landlord to Tenant		$1,506.15

Claims and awards in Tenancy Tribunal application 4616773 — net $1,506.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation: shower ceiling hole	$100.00		shower ceiling hole
Rent credit		$285.71	Rent credit
Compensation: Hot water failures		$900.00	Hot water failures
Exemplary damages: Failure to appointment agent		$300.00	Failure to appointment agent
Compensation for cleaning		$100.00	Compensation for cleaning
Filing fee reimbursement (tenants		$20.44	Filing fee reimbursement (tenants
Total award	$100.00	$1,606.15
Net award		$1,506.15
Total payable by Landlord to Tenant		$1,506.15

Order

Ali Vandaei must pay Jake Sturrock $502.05 immediately, calculated as shown in the table below.
Ali Vandaei must pay Claudia Opperman $502.05 immediately, calculated as shown in the table below.
Ali Vandaei must pay Jake Dylan Sweet $502.05 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing, conducted via videoconference. All three tenants named in this order were present. Claudia Opperman left the hearing before it ended due to work requirements.
This was a rehearing, granted after the landlord application for one after the first determination was successful. That adjudicator provided for the rehearing to be afresh on both applications.
At the first hearing, the tenants had been represented by Jake Sturrock. This representation authority had been confirmed in writing prior by the other tenants.
One of the reasons for the rehearing being granted was a difference of opinion by one tenant, Josh Howarth, regarding the extent of the claims made in the tenant application and subsequent order. He was happy to seek the return of the bond, but he did not want to prosecute any further claims against the landlord.
In the rehearing decision of 22 February 2024, the adjudicator notes: [10] There appears a significant possibility that Mr Howarth did not inform himself of the nature of the claims before authorising Mr Sturrock to proceed. As noted, that does not prevent Mr Sturrock from bringing the claims, but it may have meant that Mr Howarth did not present to the Tribunal a view, or evidence about the claims, that he would otherwise have done. That being so, as a party with direct knowledge of the matters in question, there is a risk that a miscarriage of justice may have occurred in an Order being made without hearing from him.
Given the stance of Mr Howarth, it is appropriate to remove him as a party for any monetary order. The three tenants in attendance confirmed the claims as made were supported by them all. The use of the term “tenants” in this order may be confusing. At times it will refer to the collective four during the tenancy, while at other times only the applicants here. The context should assist. Claims
The tenants have applied for compensation of overpaid rent and exemplary damages.
The landlord has counterclaimed, seeking vacated cost compensation.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. The tenant claims

Was rent overpaid?

The tenancy ended on Tuesday 25 April 2023. Rent had been paid one week in advance the previous Friday, leaving rent at the end of the tenancy as two days overpaid. This totals $285.71 and this amount is awarded to the tenants.

Did the landlord fail to maintain?

The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
Under section 45, a landlord must, amongst a number of requirements, provide and maintain the premises in a reasonable state of repair, and comply with any relevant enactment in relation to buildings, health and safety.
Breaching any such obligation may be an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The primary dispute in this matter is with regard to the premises gas hot water system. It failed during the first 4-6 weeks of the tenancy and was replaced. The landlord terminated the property management agreement with his agent after a disagreement between them on the remedial
It was an aged system that required replacing not long into the tenancy. Prior to the replacement it proved unreliable, requiring frequent contractor visits and relighting. Given this, there were periods of no hot water available to the tenants.
There are clear grounds for compensation to the tenants. Consistent hot water supply is a reasonable expectation and any failure should be attended to immediately. The offer of the landlord to use his house to shower may have been genuine but it was reasonably considered unacceptable by the tenants. Having considered the likely timing and impacts I have determined compensation of $300.00 to each named tenant is appropriate.
I also considered whether the continued use of the system via relighting was also an unlawful act that should attract exemplary damages.
In Birch v Otautahi Community Housing Trust 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.
There is a prima facie case for intent to be established based on the recounting, one year later, by the first plumber, as expressed by him in an email to the previous property manager and subsequently forwarded to one of the tenants. The plumber’s recollection is that he clearly advised the landlord not to use or relight as it was unsafe.
The landlord responded that this plumber was arranged by the agent and not his usual one. He maintains he had TMD plumbing attend not long afterwards and confirm it was safe to use (the lighting fault notwithstanding). Josh Howarth stated in his written submission that he never felt unsafe relighting, claiming such confidence was after speaking to one of the technicians that attended.
Lapsed time since and the involvement of multiple parties has made a clear determination difficult. I do not find it established as more than likely the landlord intentionally disregarded the safety of the gas hot water heating system.
I do not find any failure per s 45 to meet the threshold to be considered an unlawful act. I refer back to the Birch decision of the District Court regarding the appropriate threshold the Tribunal should apply. With regard the gas hot water system, I have already discussed the apparent conflicting views of the plumbers regarding the system usability (and not its advanced age), but given the subsequent and ongoing relighting of gas hot water system, by both the owner and tenants, as well as plumbers, I fail to find intent that should lead to an order for exemplary damages. Shower ceiling
Near the end of the tenancy a hole in the ceiling above one of the showers was required to be made to facilitate a leak repair. The hole was left exposed until the end of the tenancy.
Subsequent to the first hearing, Josh Howarth provided a written statement. In that he states he considered there was no safety or health risk and he verbally advised the landlord it was fine to leave open. Leaving the area exposed for some time after a leak repair is a practical one to ensure the leak is repaired before closing up the cavity. Jake Sturrock referred to several text messages requesting its closing.
In this instance, I do not accept that the landlord could reply on the agreement of one tenant to delay closing up. The tenancy ended approximately three months later and in a text message dated 27 January 2024, the landlord committed to having someone attend to it, also requesting they leave the fan working to get it dry. The tenancy ended 25 April 2024. I do consider compensation should be ordered here to reflect the extended delay and I have settled on $100.00 as the impact appears minimal.

Did the landlord interfere with the privacy of the tenants?

The tenants claims the landlord has entered the premises without consent or notice and interfered with their right to quiet enjoyment.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
A landlord also must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (see s 38(2) Residential Tenancies Act 1986). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00 (see s 38(3) and Schedule 1A RTA).
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).
Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
The messages between the parties show frequent interaction and visits from the landlord. With regard the privacy of the tenants, I have further considered the submissions and evidence and I do not find that any actions of the owner can be established as unlawful, be it entry or harassment. There was a healthy initial level of cooperation regarding landlord visits that unfortunately was not sustained. The impact on the tenants’ quiet enjoyment, due to hot water and maintenance related visits by the landlord and other tradespeople, has been considered in the compensation awarded regarding maintenance.

Did the landlord fail to appoint an agent when he was overseas?

The tenants claims the landlord has been overseas for longer than the Act permits without appointing an agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.
The landlord acknowledged he has been overseas for ten weeks without a domestic agent appointed. This was more than 21 consecutive days. As the landlord did not appoint an agent, he committed an unlawful act.
The evidence provided shows a high level of digital engagement that made the absence less of an impact than it might otherwise have been. That said, those same messages show a frequency of landlord visits when in country – something not possible from afar. The recent improvements in instant messaging has reduced the “tyranny of distance” but there is still both a statutory and practical need for a local presence.
I must decide if it is appropriate to award exemplary damages.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA
The Tribunal may draw an inference of intent where the landlord claims to have simply forgotten or been unaware, as a landlord should have systems in place to ensure this does not happen.
I have determined exemplary damages are appropriate for the failure to appoint an agent. Having considered the respective factors I have awarded $300.00, being at the lower end of the scale. This reflects the minimal impact in this instance while balancing the statutory failing of the landlord and the broader public interest to ensure local agency during extended landlord absences during a tenancy. Other claims dismissed or not proven.
The claim of the landlord interfering with the supply of services to the premises (see s 45(2A) RTA) appears to pertain to the initial gas connection issue. I do not consider that issue meets the threshold for consideration of exemplary damages and the claim is dismissed. The failure of the hot water suppy for periods of time near the start of the tenancy does not come uder s 45(2A)
Landlord failures regarding Healthy home compliance/information were claimed. The claims are not evidentially supported as the landlord produced a Healthy Homes certificate, that, combined with remedial steps completed as identified, made the premises HHS compliant.
A claim regarding landlord failures regarding smoke alarms was not evidentially sustained. The landlord claims
The landlord made three claims for compensation, mould in garage ($276.00), Gas reconnection ($199.00) and end of tenancy clean ($437.00). Mould
The landlord claimed $276.00 compensation for the cleaning costs incurred in removing significant mould from the garage ceiling. This area also included the laundry, including a clothes dryer. Photographs clearly show mould.
In Xiao and Zhao v Dong [2021 NZTT North Shore 4219619 at [26], the Adjudicator found that “generally, landlords will only be responsible for mould that arises in the course of a tenancy, if there were some defects with the tenancy, that the landlord would be responsible for. Some level of mould is a reality in residential dwellings, even dwellings that are well build, warm, ventilated and without defects”, deciding that the mould was not the responsibility of the landlord because “the tenants have no identified any pre- existing problem with mould at the start of the tenancy”, “no evidence before the Tribunal that there is any defect with the structure of the building” and that “the problem with the mould may have arisen as a consequence of how the tenants were living in the dwelling”.
In this instance, the causation and extent of mould is disputed. The landlord clearly blames the tenants. The tenant response is that the underlying cause was a leak from above the ceiling. This view was voiced in March 2023 by a property agent who conducted an inspection. She notes in the report that she was, “...concerned that the shower is leaking as there's significant mould on the garage directly below."
The landlord claims that no leak was later identified.
Having considered the respective submissions, I do not find the landlord has been able to establish the mould as being more than likely due to unexpected or irresponsible tenant actions. Therefore, the claim must be dismissed. Gas reconnection
With the authority of the property manager at commencement, the tenants had the gas reconnected at a cost of $199.00. This was reimbursed at the time.
The landlord now seeks it returned, claiming the cost was incurred due to the tardiness of the tenants in arranging the connection.
I consider the argument moot as the matter was dealt with at the time by the agent, who may bind the owner. The issue cannot be revisited now and the claim is dismissed. Cleaning
The landlord sought compensation for a standard house clean carried out at the end of the tenancy. The cost quoted was $437.00.
At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
The statutory requirement is that tenants leave the premises in a reasonably clean and reasonably tidy condition. The RTA allows for fair wear and tear. A tenant is not required to leave a property spotless or even in a condition where the landlord would be happy to rent it out to a new tenant. What is required is that premises including the stove and bathroom fittings are cleaned and all personal items removed. A tenant is not required to rigorously clean all walls, ceilings lightshades, skirtings, behind appliances or the outside of the house. It is common that a landlord wishes to clean to this “extra” level so that they can re-tenant or sell. However, that is a business decision that a landlord makes at their cost.
Some limited photos were supplied by the landlord. They are specific and close up, one is of wall damage (unclaimed) and others of unidentified areas showing dust or cobwebs.
The March 2023 inspection report, mentioned previously, also addressed the general condition but in a positive light, describing it as “spotless”. I acknowledge the landlord’s suspicions regarding that report and possible motivations. It is not the only unsubstantiated suspicion expressed by the landlord. Being unsubstantiated, I place no weighting on such claims.
Having considered both positions, each may be correct in part. The photos are of some areas that may have been behind furnishings or such – not obvious until those objects are removed on vacate.
I accept some targeted cleaning need has been evidenced and I award $100.00 towards cleaning of those areas. Filing fee
Because Jake Sturrock, Claudia Opperman, and Dylan Sweet have substantially succeeded with the claim I have reimbursed the filing fee. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The landlord requested suppression in his application. As he has not been wholly or substantially successful, no suppression is ordered.
This order took longer than expected and as indicated to the parties. The patience of the parties is appreciated. There was some post-hearing communication with the Tribunal. With the issuing of this order the matter is closed and no attempt to communicate directly with the adjudicator should be made.

Tenancy Tribunal case 4616773 — Exemplary damages at 19 Beach Road, Castor Bay, Auckland 0620

At a glance

Tenancy Tribunal case 4616773 — Exemplary damages at 19 Beach Road, Castor Bay, Auckland 0620

At a glance

Award balance

Claims & awards

Order

Reasons

Was rent overpaid?

Did the landlord fail to maintain?

Did the landlord interfere with the privacy of the tenants?

Did the landlord fail to appoint an agent when he was overseas?

Topics & place

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was rent overpaid?

Did the landlord fail to maintain?

Did the landlord interfere with the privacy of the tenants?

Did the landlord fail to appoint an agent when he was overseas?

Topics & place

Key findings

Frequently asked questions