What was the outcome of Tenancy Tribunal case 4662329?

The tribunal order states: Taylor Property Services Limited As Agents For Brenda Yu must pay Claire

How much money was awarded in case 4662329?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4662329?

The primary dispute was Rent arrears. Related themes: Healthy homes, Exemplary damages, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4662329?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9664850-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4662329?

The tribunal order states: Taylor Property Services Limited As Agents For Brenda Yu must pay Claire

How much money was awarded in case 4662329?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4662329?

The primary dispute was Rent arrears. Related themes: Healthy homes, Exemplary damages, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4662329?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9664850-Tenancy_Tribunal_Order.pdf.

24 Bevyn Street, Castor Bay, Auckland, Auckland 0620 Tenancy Tribunal Case 4662329 — Rent arrears

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

24 Bevyn Street, Castor Bay, Auckland, Auckland 0620 Tenancy Tribunal Case 4662329 — Rent arrears | 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 4662329. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

Taylor Property Services Limited As Agents For Brenda Yu must pay Claire Varney (Brady) $1,000.00 immediately, being exemplary damages for a breach of the landlords obligations around buildings, health and safety.
The stay of enforcement of the landlords application is lifted.
The application for rehearing is dismissed.
All other claims are dismissed.

Reasons

The Tribunal must consider an application for rehearing filed by the tenant in relation to an earlier decision issued for the landlord, and secondly an application filed by the tenant seeking bond from a different premises, compensation for flooding, and exemplary damages.
The tenancy commenced on 27 May 2017. The landlord is Brenda Yu by way of a property manager, Taylor Property Services Limited. The sole tenant is Claire Brady.
A hearing was scheduled for 20 November 2023 by telephone. The tenant requested to be represented by her partner, Colin Varney. The landlord was represented by the property manager at the hearing, Ms Hu. The premises are located at 24 Bevyn Street, Mildford.
On 25 August 2023 the Tribunal issued a decision in relation to an application from the landlord for rent arrears. The tenant was ordered to pay $5,979.14 of rent arrears, but that order was stayed pending determination of the tenants cross application, which is the subject of this order.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or 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.

TENANTS CLAIMS

Bond refund

The tenant seeks an order that bond be refunded, that bond relating to premises rented by the tenant’s parents, being an entirely different tenancy address. As I understand matters, the tenant’s parents have passed away, and the tenant seeks the bond held for that premises to be transferred to them.
Certainly if there is a dispute in relation to the landlord and tenant over the premises that are the subject of the application before me (Bevyn Street), then I am able to make orders around that bond.
I cannot make orders in relation to a bond held by other tenants and for a different address, even if they are family members who have passed away. Normally if the Bond Centre holds a bond for a deceased person, the Executor of the Estate would apply to the Bond Centre for the bond to be released, or if there was any dispute around this, then an application can be filed with the Tribunal at that time. However that is not the tenancy which is the subject of the matter now before me.
In this case the tenant seeks an order that the landlord compensate the tenant for the sum of that bond, because the tenants consider the landlord acted negligently in having that bond transferred. The point remains that any disputes around bond for a different premises is outside the jurisdiction of the Tribunal under this application.
This application must be dismissed. Compensation around flooding
The evidence is that there were no concerns around flooding at the premises since the tenancy started in 2017, until issues were raised with the landlord in 2021. The tenant states: In late 2021 and early 2022, I made the landlord aware of water ingress issues in the laundry area due to pooling of water outside the laundry door. These concerns were responded to by the Property Manager via email on February 10, 2022, where she states, “I have ordered a builder to attend to your laundry leaking problem, will follow him up today.”
The evidence is that the landlord did have a tradesman attend the premises, and work was undertaken to address the issue. The position taken by the tenant is that the work that was undertaken was ineffective, the tenant suggests that the landlord avoided the proper but more expensive option to resolve the issue. The tenant says: The measures undertaken by the builder in response to the water ingress issue were undoubtedly feeble and destined for failure. This fact became increasingly evident, as the same concerns were repeatedly raised with the Property Manager. Despite our persistent efforts to highlight the insufficiency of the attempted rectification, the issue remained unresolved.
The landlord’s position however, is that after the work was completed by the builder in May 2021, the tenant did not raise any further concern until flooding following the Cyclone Gabrielle event early in 2023. In particular the landlord states that she emailed the tenants twice in June and once in September 2022 to check on things, but the tenant did not respond. The landlord also states that a property inspection was undertaken in July 2022 and there was no evidence of water ingress at that time.
In any event the tenants position is that because of flooding in January 2023 and May 2023, only 50% of the tenancy could be used. The tenants consider the foundation of the problem was not the weather, but inadequate drainage.
The landlord does not dispute there was flooding in January 2023, but states that evidence of flood damage was requested from the tenant for any May 2023 flooding, but the tenant would not provide it. Analysis
In order to require the landlord to pay any level of compensation to the tenants, I would firstly need to establish that there was a breach of some legal obligation the landlord had to the tenant, and for the following reasons I find that a breach has not been established.
The evidence from the tenant is that there were no issues with water ingress from the start of the tenancy in 2017 until 2021. The fact of there being such a long period without flooding does support a conclusion that the drainage around the premises was adequate over those intervening years. The tenant has not identified anything that had changed in 2021, certainly anything to do with the tenancy premises.
However, it is the case that in early 2021 when issues were raised with the landlord around water pooling around the laundry door, the landlord did act to get a tradesman to undertake work to mitigate any risk. That was a responsible thing to have done. There is insufficient evidence before the Tribunal to prove that there was any issues with water ingress after that work was undertaken, until the extraordinary widespread flooding issues around Cyclone Gabrielle. That supports a conclusion that the landlord has complied with its obligations around maintenance, and ensuring the tenancy is free from damp.
I accept that there was flooding with Cyclone Gabrielle, but that has not been proven to be the result of a breach of an obligation from the landlord, but was from a weather event for which the landlord is not liable.
Furthermore the onus sits with the tenant to establish her claim. It is the tenant who must prove a breach on the part of the landlord. That means it is the tenant who must provide the evidence to the Tribunal establishing a breach. In this case the tenant has not provided any evidence, beyond her statements, and the statements of her partner as to their assessment of the situation. For example I have not received any photographs, reports or records from the council or some other qualified person showing that the landlord has breached some obligation in relation to buildings, health and safety.
As I find this claim has not been proven, I cannot make any orders around compensation for flooding. Exemplary damages
The tenant seeks exemplary damages on the basis that the landlord has breached her obligations as it relates to heating.
The tenant’s position is that there was no heating source provided at all. While there was a heat pump it was broken (as recorded on the tenancy agreement).
The landlord agrees that the heat pump was broken. The landlord confirmed that a later Healthy Homes Inspection confirmed a range of areas that the HHS failed on, and in order to address this a heat pump was installed in February 2021, but the landlord accepts there was no heating in the premises between the tenancy commencing in 2017 and the heat pump being installed in 2021. Analysis
Because of when the tenancy started, the Healthy Homes Standards would not apply to this tenancy until 2025. However that is not to say there are no obligations on the landlord around heating, there certainly are.
The Housing Improvement Regulations 1947 apply, and require the landlord to provide a fire or some other approved form of heating, and in this case there is no dispute that for much of the tenancy there was no heating provided at all.
The obligations on the landlord were summarised by the Tenancy Tribunal in the case of Harris and Te Huna v Rusa Property investments Limited [2019] NZTT Tauranga 4197430, 4201635, where Adjudicator Mr Smith explained:
The Housing Improvement Regulations 1947 set out minimum standards that apply to premises, including:
Every living room shall be fitted with a fireplace and chimney or other approved form of heating.
...
The requirement for an approved form of heating in the living room has been in place since 1947 ...
The difficulty with the 1947 regulation is that there is currently no guideline specifying what constitutes an approved form of heating (where there is no fireplace). In some areas certain types of heating are prohibited, but that does not provide guidance on what should be installed. Therefore, until the healthy homes standards come into effect, an approved form of heating is likely to be anything that is not prohibited.
The tenants say they used electrical and oil-filled heaters to heat the house. The landlords say there would have been no problem with supplying an electric heater. This would have been sufficient to comply with the regulation even though it would not have had the heating capacity of a fireplace (Complete Property Management Limited v White, CIV-2010-009-3562, Christchurch, 3 Feb 2011).
I agree with Mr Smith, that an approved form of heating must be accepted as any sort of heating that is not prohibited, and given the landlord provided no form of heating, then the landlord has breached this obligation.
Section 45 of the RTA sets out the landlords responsibilities, and that includes at section 45(1)(c) the requirement to: comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises;
That requirement would include the landlord’s obligations under the Housing Improvement Regulations. The landlord has breached that obligation, which is deemed to be an unlawful act (s45(1A)). The tenants seek exemplary damages for that breach.
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.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for a breach of section 45 is $7,200.00.
In this case I have determined that exemplary damages should be ordered, in particular: a. I consider the landlords decisions around what heating to provide are likely to have been intentional decisions. The landlord is represented by a professional property manager, who would be expected to know of the landlords obligations around heating and buildings. b. The effect of the unlawful act is that the tenant spent several years without heating supplied by the landlord. c. There are strong interests for tenants and the public generally that tenancies be warm, and providing heating whether under the Housing Improvement Regulations or the current Health Homes Standards are a critical way that is achieved. d. I consider it would be just to make an order.
Again the maximum level of exemplary damages for this breach is $7,200.00. Given the nature of the breach, I consider that an order of exemplary damages to the sum of $1,000.00 would be reasonable, and that is ordered.

APPLICATION FOR REHEARING

The tenant has applied for a rehearing of the original order from August 2023 on the grounds that name suppression should have been available to the tenant in relation to that order, at least until the tenant’s cross application was considered.
Section 105 of the Residential Tenancies Act 1986 relates to rehearing’s. Subsection 1 confirms that: The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.
I find there are no grounds to order a rehearing of the landlords application for these reasons.
Firstly the original order related to rent arrears. Even if the tenant considered she had a valid claim against the landlord (and I accept she did), she was still required to pay her rent, this is required by section 40(1)(a) which sets out the tenants responsibilities, and that includes to: pay the rent as and when it is due and payable under the tenancy agreement;
If the tenant considered she should have received compensation for the flooding, she should have continued to pay the rent as it fell due, at the same time negotiating with the landlord, or applying to the Tribunal for an order that compensation be paid. The tenant did not do that, which was a breach of her obligations under the RTA.
The Tribunal can order name suppression when a party who has been wholly or substantially successful in an application applies for it, and in this case the tenant was not successful in her defence of the landlords claim.
Furthermore, as set out above, even in relation to the tenant’s application, the tenant has not been wholly or substantially successful, so there would be no grounds upon which the Tribunal can order name suppression under the tenant’s application.
I cannot see any substantial wrong or miscarriage of justice arising actual or potential. Therefore the application for rehearing must be declined.

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 4662329. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

Taylor Property Services Limited As Agents For Brenda Yu must pay Claire Varney (Brady) $1,000.00 immediately, being exemplary damages for a breach of the landlords obligations around buildings, health and safety.
The stay of enforcement of the landlords application is lifted.
The application for rehearing is dismissed.
All other claims are dismissed.

Reasons

The Tribunal must consider an application for rehearing filed by the tenant in relation to an earlier decision issued for the landlord, and secondly an application filed by the tenant seeking bond from a different premises, compensation for flooding, and exemplary damages.
The tenancy commenced on 27 May 2017. The landlord is Brenda Yu by way of a property manager, Taylor Property Services Limited. The sole tenant is Claire Brady.
A hearing was scheduled for 20 November 2023 by telephone. The tenant requested to be represented by her partner, Colin Varney. The landlord was represented by the property manager at the hearing, Ms Hu. The premises are located at 24 Bevyn Street, Mildford.
On 25 August 2023 the Tribunal issued a decision in relation to an application from the landlord for rent arrears. The tenant was ordered to pay $5,979.14 of rent arrears, but that order was stayed pending determination of the tenants cross application, which is the subject of this order.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or 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.

TENANTS CLAIMS

Bond refund

The tenant seeks an order that bond be refunded, that bond relating to premises rented by the tenant’s parents, being an entirely different tenancy address. As I understand matters, the tenant’s parents have passed away, and the tenant seeks the bond held for that premises to be transferred to them.
Certainly if there is a dispute in relation to the landlord and tenant over the premises that are the subject of the application before me (Bevyn Street), then I am able to make orders around that bond.
I cannot make orders in relation to a bond held by other tenants and for a different address, even if they are family members who have passed away. Normally if the Bond Centre holds a bond for a deceased person, the Executor of the Estate would apply to the Bond Centre for the bond to be released, or if there was any dispute around this, then an application can be filed with the Tribunal at that time. However that is not the tenancy which is the subject of the matter now before me.
In this case the tenant seeks an order that the landlord compensate the tenant for the sum of that bond, because the tenants consider the landlord acted negligently in having that bond transferred. The point remains that any disputes around bond for a different premises is outside the jurisdiction of the Tribunal under this application.
This application must be dismissed. Compensation around flooding
The evidence is that there were no concerns around flooding at the premises since the tenancy started in 2017, until issues were raised with the landlord in 2021. The tenant states: In late 2021 and early 2022, I made the landlord aware of water ingress issues in the laundry area due to pooling of water outside the laundry door. These concerns were responded to by the Property Manager via email on February 10, 2022, where she states, “I have ordered a builder to attend to your laundry leaking problem, will follow him up today.”
The evidence is that the landlord did have a tradesman attend the premises, and work was undertaken to address the issue. The position taken by the tenant is that the work that was undertaken was ineffective, the tenant suggests that the landlord avoided the proper but more expensive option to resolve the issue. The tenant says: The measures undertaken by the builder in response to the water ingress issue were undoubtedly feeble and destined for failure. This fact became increasingly evident, as the same concerns were repeatedly raised with the Property Manager. Despite our persistent efforts to highlight the insufficiency of the attempted rectification, the issue remained unresolved.
The landlord’s position however, is that after the work was completed by the builder in May 2021, the tenant did not raise any further concern until flooding following the Cyclone Gabrielle event early in 2023. In particular the landlord states that she emailed the tenants twice in June and once in September 2022 to check on things, but the tenant did not respond. The landlord also states that a property inspection was undertaken in July 2022 and there was no evidence of water ingress at that time.
In any event the tenants position is that because of flooding in January 2023 and May 2023, only 50% of the tenancy could be used. The tenants consider the foundation of the problem was not the weather, but inadequate drainage.
The landlord does not dispute there was flooding in January 2023, but states that evidence of flood damage was requested from the tenant for any May 2023 flooding, but the tenant would not provide it. Analysis
In order to require the landlord to pay any level of compensation to the tenants, I would firstly need to establish that there was a breach of some legal obligation the landlord had to the tenant, and for the following reasons I find that a breach has not been established.
The evidence from the tenant is that there were no issues with water ingress from the start of the tenancy in 2017 until 2021. The fact of there being such a long period without flooding does support a conclusion that the drainage around the premises was adequate over those intervening years. The tenant has not identified anything that had changed in 2021, certainly anything to do with the tenancy premises.
However, it is the case that in early 2021 when issues were raised with the landlord around water pooling around the laundry door, the landlord did act to get a tradesman to undertake work to mitigate any risk. That was a responsible thing to have done. There is insufficient evidence before the Tribunal to prove that there was any issues with water ingress after that work was undertaken, until the extraordinary widespread flooding issues around Cyclone Gabrielle. That supports a conclusion that the landlord has complied with its obligations around maintenance, and ensuring the tenancy is free from damp.
I accept that there was flooding with Cyclone Gabrielle, but that has not been proven to be the result of a breach of an obligation from the landlord, but was from a weather event for which the landlord is not liable.
Furthermore the onus sits with the tenant to establish her claim. It is the tenant who must prove a breach on the part of the landlord. That means it is the tenant who must provide the evidence to the Tribunal establishing a breach. In this case the tenant has not provided any evidence, beyond her statements, and the statements of her partner as to their assessment of the situation. For example I have not received any photographs, reports or records from the council or some other qualified person showing that the landlord has breached some obligation in relation to buildings, health and safety.
As I find this claim has not been proven, I cannot make any orders around compensation for flooding. Exemplary damages
The tenant seeks exemplary damages on the basis that the landlord has breached her obligations as it relates to heating.
The tenant’s position is that there was no heating source provided at all. While there was a heat pump it was broken (as recorded on the tenancy agreement).
The landlord agrees that the heat pump was broken. The landlord confirmed that a later Healthy Homes Inspection confirmed a range of areas that the HHS failed on, and in order to address this a heat pump was installed in February 2021, but the landlord accepts there was no heating in the premises between the tenancy commencing in 2017 and the heat pump being installed in 2021. Analysis
Because of when the tenancy started, the Healthy Homes Standards would not apply to this tenancy until 2025. However that is not to say there are no obligations on the landlord around heating, there certainly are.
The Housing Improvement Regulations 1947 apply, and require the landlord to provide a fire or some other approved form of heating, and in this case there is no dispute that for much of the tenancy there was no heating provided at all.
The obligations on the landlord were summarised by the Tenancy Tribunal in the case of Harris and Te Huna v Rusa Property investments Limited [2019] NZTT Tauranga 4197430, 4201635, where Adjudicator Mr Smith explained:
The Housing Improvement Regulations 1947 set out minimum standards that apply to premises, including:
Every living room shall be fitted with a fireplace and chimney or other approved form of heating.
...
The requirement for an approved form of heating in the living room has been in place since 1947 ...
The difficulty with the 1947 regulation is that there is currently no guideline specifying what constitutes an approved form of heating (where there is no fireplace). In some areas certain types of heating are prohibited, but that does not provide guidance on what should be installed. Therefore, until the healthy homes standards come into effect, an approved form of heating is likely to be anything that is not prohibited.
The tenants say they used electrical and oil-filled heaters to heat the house. The landlords say there would have been no problem with supplying an electric heater. This would have been sufficient to comply with the regulation even though it would not have had the heating capacity of a fireplace (Complete Property Management Limited v White, CIV-2010-009-3562, Christchurch, 3 Feb 2011).
I agree with Mr Smith, that an approved form of heating must be accepted as any sort of heating that is not prohibited, and given the landlord provided no form of heating, then the landlord has breached this obligation.
Section 45 of the RTA sets out the landlords responsibilities, and that includes at section 45(1)(c) the requirement to: comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises;
That requirement would include the landlord’s obligations under the Housing Improvement Regulations. The landlord has breached that obligation, which is deemed to be an unlawful act (s45(1A)). The tenants seek exemplary damages for that breach.
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.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for a breach of section 45 is $7,200.00.
In this case I have determined that exemplary damages should be ordered, in particular: a. I consider the landlords decisions around what heating to provide are likely to have been intentional decisions. The landlord is represented by a professional property manager, who would be expected to know of the landlords obligations around heating and buildings. b. The effect of the unlawful act is that the tenant spent several years without heating supplied by the landlord. c. There are strong interests for tenants and the public generally that tenancies be warm, and providing heating whether under the Housing Improvement Regulations or the current Health Homes Standards are a critical way that is achieved. d. I consider it would be just to make an order.
Again the maximum level of exemplary damages for this breach is $7,200.00. Given the nature of the breach, I consider that an order of exemplary damages to the sum of $1,000.00 would be reasonable, and that is ordered.

APPLICATION FOR REHEARING

The tenant has applied for a rehearing of the original order from August 2023 on the grounds that name suppression should have been available to the tenant in relation to that order, at least until the tenant’s cross application was considered.
Section 105 of the Residential Tenancies Act 1986 relates to rehearing’s. Subsection 1 confirms that: The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.
As noted by Judge Christiansen in the District Court appeal of Loh v Puri [2019] NZDC 1993: In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearings are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.
I find there are no grounds to order a rehearing of the landlords application for these reasons.
Firstly the original order related to rent arrears. Even if the tenant considered she had a valid claim against the landlord (and I accept she did), she was still required to pay her rent, this is required by section 40(1)(a) which sets out the tenants responsibilities, and that includes to: pay the rent as and when it is due and payable under the tenancy agreement;
If the tenant considered she should have received compensation for the flooding, she should have continued to pay the rent as it fell due, at the same time negotiating with the landlord, or applying to the Tribunal for an order that compensation be paid. The tenant did not do that, which was a breach of her obligations under the RTA.
The Tribunal can order name suppression when a party who has been wholly or substantially successful in an application applies for it, and in this case the tenant was not successful in her defence of the landlords claim.
Furthermore, as set out above, even in relation to the tenant’s application, the tenant has not been wholly or substantially successful, so there would be no grounds upon which the Tribunal can order name suppression under the tenant’s application.
I cannot see any substantial wrong or miscarriage of justice arising actual or potential. Therefore the application for rehearing must be declined.

Tenancy Tribunal case 4662329 — Rent arrears at 24 Bevyn Street, Castor Bay, Auckland, Auckland 0620

At a glance

Tenancy Tribunal case 4662329 — Rent arrears at 24 Bevyn Street, Castor Bay, Auckland, Auckland 0620

At a glance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

APPLICATION FOR REHEARING

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

APPLICATION FOR REHEARING

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions