What was the outcome of Tenancy Tribunal case 4668549?

The tribunal order states: Michelle Linda Mathews and Marcelle Siteine’s applications are dismissed.

How much money was awarded in case 4668549?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4668549?

The primary dispute was Rent arrears. Related themes: State of repair, Healthy homes, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4668549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10529823-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4668549?

The tribunal order states: Michelle Linda Mathews and Marcelle Siteine’s applications are dismissed.

How much money was awarded in case 4668549?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4668549?

The primary dispute was Rent arrears. Related themes: State of repair, Healthy homes, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4668549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10529823-Tribunal_Order.pdf.

553 New North Road, Kingsland, Auckland 1021 Tenancy Tribunal Case 4668549 — Rent arrears

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Reasons

The hearing was attended on three days by both parties: Ms Marcelle Siteine and Ms Michelle Mathews for the tenants, and by Mr Jose San Diego representing the landlord with Mr Ben Boshier, the property manager in support. 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. Background and procedural issues

The tenancy which began on 20 October 2022, ended on 12 September 2023 when the tenancy was terminated due to rent arrears.

The landlord filed application NZTT 4637689 on 24 July 2023 seeking termination of the tenancy and rent arrears. The hearing was held on 21 August 2023 and an order under same number was issued ordering rent arrears and conditional termination.

On 29 August 2023, the tenants filed a cross-application. Even though it was filed subsequent to the decision for the first application, it is a cross-application as it relates to the same tenancy. The claim is for breach of Healthy Homes standards (“HHS”), (moisture ingress, heating, insulation and draught stopping) and failure to maintain the premises in a reasonable state of repair.

The tenants’ application to the Tribunal states the quantum in damages sought as $100,000.00, and includes alleged losses to business inventory, doctor’s bills and compensation for time off work due to illness.

The first hearing date of 23 January 2024 was adjourned before the hearing day at the request of the landlord as the landlord sought to appoint counsel due to the quantum being sought by the tenant.

Shortly before the second hearing date of 1 March 2024 the landlord filed a large bundle of documents, and when the hearing was called the tenants requested an adjournment so they could review the information filed and consider a response. The application for an adjournment was granted.

The third hearing date was a full day on Friday 3 May 2024. Both parties attended and the hearing consisted largely of the tenants making their submissions. The last hour of the day, more or less, involved Mr San Diego responding to some of the tenants’ claims of breach of HHS, heating, insulation and draught stopping standards, including submissions on the presence of mould.

The fourth scheduled day of the hearing was 25 June 2024. Mr San Diego completed his response to the claims of breaches of the HHS.

The tenants then made an application to have the hearing transferred to the District Court because: a. they say their claim exceeds the jurisdictional limit of the Tenancy Tribunal, and b. they wanted to ensure their applications would be heard fully and scrupulously; and c. they wished to have legal representation.

The landlord opposed the matter being transferred to the District Court due to the lateness, in terms of the hearing, that the application was being made. Application to transfer to the District Court

In the first instance, the Tenancy Tribunal is the correct court or body to hear disputes tenants and landlords, see sections 77 and 82 of the Residential Tenancies Act, 1986 (the “RTA”) which includes the following: 77Jurisdiction of Tribunal (1)The Tribunal has, subject to the Limitation Act 2010, jurisdiction to determine in accordance with this Act any dispute that— (a)exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b)relates to any tenancy to which this Act applies or to which this Act did apply at any material time. ... (5)Despite subsection (1), the Tribunal does not have jurisdiction to require any party to pay any sum, or to do any work to a value, or otherwise to incur any expenditure, in excess of $100,000. 82Exclusion of other jurisdictions (1)Notwithstanding any other enactment or rule of law to the contrary, no court or other body shall have originating jurisdiction in respect of any matter that is within the jurisdiction of the Tribunal unless— (a)proceedings in respect of that matter were commenced before that court or other body before the commencement of this Act; or (b)an order is made under section 83(2).

The tenants have filed an application including a quantum of $100,000.00. The application is not supported by documentary evidence setting out the basis for this amount. That is not to say that the information could not be produced in the course of the hearing, but at the outset of the hearing, the claim for that quantum was not a strong one.

The quantum of $100,000.00, meets the jurisdictional limit of the Tribunal, but does not exceed it. Therefore, this is not a legitimate ground to transfer the hearing to the District Court.

In cases where a claim does exceed the jurisdictional limit, there is authority to say that the Tribunal may still hear the claim in the first instance.

In Holler v Osaki [2012] NZHC 939, the High Court found that within an application that may exceed the statutory limit, the Tenancy Tribunal can nevertheless address claims within the application that fall within the limit. At [33] Associate Judge Abbott stated: “I regard s 77(5) as limiting the relief that can be given by the Tenancy Tribunal, rather than automatically removing its jurisdiction. It follows that where a party seeks an order for a sum in excess of $50,000, the Tribunal will not have exclusive jurisdiction. However, that does not mean that all matters in issue must necessarily be referred to a Court that can award the relief being sought. There may be an issue that can be appropriately dealt with by the Tribunal.”

Following the authority of Holler v Osaki, unless the case is made out that a quantum exceeding the statutory limit of the Tribunal is needed, the application can be heard in the Tribunal and it need not be transferred to the District Court.

Nor does an application need to be transferred to the District Court because a party wishes to be represented by legal counsel. In this case, the landlord is represented by legal counsel, and equally so the tenant may be represented by legal counsel given the application exceeds the amount of $6,000.00. The tenants have been at liberty to appoint counsel at any time in the course of the hearing.

The tenants’ comments about being heard fully and scrupulously by the Tribunal are a fair expectation for each party to have. If following the hearing they believe this has not happened, they should contact Tenancy Services and seek further advice. However, this is not grounds for transferring a part heard application from the Tenancy Tribunal to the District Court.

Having considered the tenants’ request to have their application transferred to the District Court, and the landlord’s response, I am not persuaded the application should be granted, and the application is declined. Application to adjourn to appoint counsel

Having had their application to have the hearing transferred to the District Court declined, the tenants sought an adjournment to appoint legal counsel.

In response, the landlord objected to a further adjournment citing the following reasons: a. The tenant has had ample opportunity since filing their application nearly ten months ago to appoint legal counsel. b. Given the age of the application, the respondents have a right to have the matter finalised so they can move on with their lives. c. The adjournment on 1 March 2024 was to allow the tenants the opportunity to consider their position following documents being filed by counsel for the landlord. This was also an opportunity for the tenants to instruct counsel if they so wished. d. The tenants were advised in the hearing on 1 March 2024 to bring their materials, which they haven’t done again. An adjournment is really being sought because the tenants are unprepared. e. The landlord has invested expense so far in defending the application and should not be required to carry further expense because the tenants are disorganised.

The landlord’s submissions are persuasive. I also consider section 85 of the RTA as stated below, and I find that the landlord’s submissions on this point are consistent with this section. 85Manner in which jurisdiction is to be exercised (1)Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. (2)The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.

I am not declining the tenant’s application to appoint counsel; as already stated they have a right to do this at any point, see Residential Tenancies Act, 1986 section 93(2)(b).

However, I am not prepared to grant an adjournment for this purpose, this far into a hearing with the best part of a full day scheduled before us. A party is expected to attend a scheduled hearing ready to present their case. In this case, the applicants filed their application 10 months ago and today’s date is the fourth time a hearing date has been given. At the point of making their application to appoint counsel, the tenants have already presented their evidence on breach of HHS, the landlord has presented their reply, and the tenants have responded to the landlord’s reply.

The tenants’ application for an adjournment to appoint counsel is declined. Materials

The parties filed a large volume (in excess of 600 pages) of information in support of their applications. I did not attempt to closely read all the material before the hearing. Having familiarised myself with the file, I have made it clear to both parties that this is an oral hearing as opposed to a hearing on the papers, and it is essential that the parties refer me to the relevant information in support of their submissions, in the course of the hearing. I have read everything that each party has referred me to in the hearing. Breach of healthy homes standards

Compliance dates for the HHS vary depending on the tenancy. Because this tenancy began on 20 October 2022 (between 28 August 2022 and 3 March 2025), it is a requirement that the property is compliant with the regulations within 120 days of the tenancy beginning.

Both parties provided photographs which show the property in question to be an older villa/ bungalow style house that has been renovated to a very high standard. On the whole, the premises appears to be in very good condition.

The tenants claim that when they first viewed the property in September 2022 it smelled damp. Ms Mathews stated that she corresponded with the landlord Mr Boshier about the dampness but he was dismissive.

Ms Mathews stated that her phone was run over prior to the hearing and the correspondence cannot be retrieved. Similarly, Ms Siteine’s phone screen was broken on the first day of the hearing and she is unable to provide records of the correspondence.

However, Mr Boshier stated he recalls the comments made by Ms Mathews on this point, but he disagreed with them; he did not smell any dampness. Mr Boshier stated the premises had recently been professionally cleaned at the beginning of the tenancy and the premises smelled fresh.

Mr San Diego produced a receipt for $1,104.00 dated 24 September 2022 for having the premises commercially cleaned. This was approximately four weeks before the tenants moved into the property. Healthy Homes Standards: Moisture ingress and drainage

The tenants, Michelle Linda Mathews and Marcelle Siteine claim the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), in that the landlord has failed to comply with the HHS moisture ingress and drainage standard.

The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The standard requires a ground moisture barrier (“GMB”) when there is an enclosed subfloor space.

On 29 August 2023, shortly before the tenancy ended, the tenants sent an email to the landlord saying that the GMB did not cover the full area under the house.

Ms Mathews stated that during the tenancy she and Ms Siteine had crawled under the house and it was clear there was no GMB covering parts of the floor.

Mr San Diego responded by referring to a Healthy Homes Assessment Report prepared by Greenside Energy Solutions dated 20 July 2022 - prior to the tenancy beginning. (Greenside Energy Solutions is an independent company providing insulation and other related advice and services. On page 11, the report states that the property is not compliant with the moisture ingress standard and specifically states “there is no ground moisture barrier.”

Mr Diego stated that a GMB was then newly installed on 29 August 2022, also prior to the tenancy beginning.

Following the complaint from the tenants, the landlord again engaged Greenside Energy Solutions to provide Healthy Homes Assessment Report which they did on 18 September 2023. Included in this report are photographs of the GMB that they installed on 29 August 2022 and the report confirms the premises is compliant with the moisture ingress standard.

The complaint from the tenants referred to an area of the GMB that Mr San Diego said may have been pulled away to allow repairs to a plumbing leak during the tenancy. Mr San Diego submitted that the area of the GMB that was pulled away amounted to two metres square, out of a total floor area of 160 metres.

Neither party produced photographs or diagrams clearly depicting the area of floor that was not covered by GMB, and I have not been provided by the tenant with any equivalent reports that provide alternative information to that provided by Greenside Energy Solutions

I am satisfied there was a GMB in place sufficient to make the premises compliant with the HHS. When it was discovered that a small area of the floor had become exposed, the installers of the GMB were engaged to reinstate the GMB. I am not persuaded the breach was intentional, nor anything more than a technical breach, which was in any case, remedied in a timely fashion as soon as the landlord was notified of the problem.

The claim for breach of the HHS moisture ingress standard is not proved. Healthy Homes Standards: Heating

The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the main living room. The heating standard defines what a qualifying heater is and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.

The tenants claim there was no heat pump in any of the bedrooms. They produced photographs of thermometers showing readings of 11 degrees and 12 degrees respectively.

The tenants also claim the heat pump in the living area was insufficient to heat the premises.

The tenants provided a letter from a doctor for Michelle Mathews dated 21/08/2022 saying that her reported temperatures in the house of 11-14 degrees were unacceptable from a medical point of view.

Mr San Diego pointed out that the photographs are not date-stamped and do not provide any reliable information of where they were taken. However, the tenants provided viva voce evidence that the photographs were taken in the bedrooms of the premises on 23 August 2023, shortly before the tenancy ended and I accept this.

Mr San Diego submitted that the HHS heating standard does not require a landlord to provide heaters in the bedrooms and this is correct.

The main living room in the tenants’ house is unusual in that it consists of a lounge type area that has had the ceiling removed so there is a void that incorporates a mezzanine loft area in the storey above: It is a two-storey living area.

In their submissions the tenants referred to one heat pump positioned above the front door and another heat pump in the loft area. They made the point that the heat pump over the front door was at the far end of the house as far away as possible from where it was needed. The loft area with the heat pump is the upstairs mezzanine area of two storey void.

The tenants submitted that originally their living area was in the loft area, but they decided it was inadequate as a living area. The heat pump in the loft area was separated from the downstairs living area by a glass wall which meant it was ineffective at heating the downstairs living area.

In response the Mr San Diego explained there is a third heat pump, this one in the downstairs area of the living area. In their submissions, the tenants did not mention the existence of this third heat pump downstairs.

Mr San Diego stated that the heat pumps were assessed by Greenside Energy Solutions on 20 July 2022 and found to need to be up rated to a total of 12kw capacity. An invoice from Oxygen Heatpumps dated 1 August 2022 (prior to the tenancy beginning) was provided which shows a Fujitsu 5.0/6.0 highwall heat pump was installed in the downstairs living area.

Once this was done, there were three heat pumps in total; one over the front door, and two in the living area, which included the downstairs area, the void and the upstairs loft area. One of the heat pumps was in the upstairs portion, and one was in the downstairs portion. The landlord provided photographs which show both of the heat pumps in this combined living area.

The second Greenside Report dated 18.09.2023 reports the total heating capacity of the heat pumps as being compliant with the HHS. The tenancy agreement signed by the tenant on 1 October 2022 also refers to a total of three heat pumps.

Mr San Diego submitted that the landlord received no complaint from the tenant about the heat pumps being inadequate or not working until the end of the tenancy. However, during a routine inspection on 19 July 2023, it was noted that one of the heat pumps’ remotes was missing and would need to be replaced. This may explain why the third heat pump was not referred to by the tenant. Mr San Diego stated that it was still possible to turn the heat pump on and off manually.

Despite the tenants perhaps not using one of the heat pumps due to having misplaced the remote, the best evidence is that the premises were compliant with the Healthy Homes Heating Standard. I am not persuaded on the balance of probabilities based on the information presented in that this hearing that the landlord breached the HHS heating standard. This claim is not proved. Healthy Homes Standards: Draught stopping

The tenants, Michelle Linda Mathews and Marcelle Siteine claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (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 tenants stated: a. The window in the loft couldn’t be closed properly; there was a gap of 1.5 cm – 2 cm at the bottom of the window. b. There was no latch on the window in bedroom 3, which meant the window couldn’t be closed properly. c. The biggest window in room 5 had a blind that was see-through, but no curtain. The window itself needed replacing.

As part of their application, the tenants provided photographs which were only loosely referred to in the hearing, including one titled “loft window huge gap”. The photograph shows an extreme close-up of a window, and perhaps a gap, but it is not easy to see, and there are no measurements and no dates.

The tenants also included in their application a photograph of a window with a disconnected swing latch, titled “unable to open window room 3” and another photo titled “no security latch or handle room 3”.

For the landlord, Mr San Diego referred to the Greenside Healthy Homes Assessment reports dated 20.07.22 and 18.09.23 which states the house is compliant with the draught stopping standard. Mr San Diego stated that some window latches were replaced in December 2022, and that no further complaints were made to the landlords about the windows during the tenancy.

A landlord is required to maintain the premises in a reasonable state of repair having regard to the age and character of the premises. Despite this premises being generally in very good conditions, some of the joinery appears original and is therefore approximately 100 years old. It is therefore likely that it will not function with the ease that brand new or near new joinery functions, and it cannot be expected to.

I can see that from the information the tenants produced that it is likely there was some partial loss of function of some of the joinery at some point in the tenancy, but to what extent and when, is not clearly made out.

The landlord has provided reports that have the premises assessed as compliant with the draught stopping standard, and the tenants have not produced information that show they notified the landlord of a breach of the draught stopping standard, and the landlord failed to act on the breach.

For these reasons I am not persuaded on the balance of probabilities that the landlord intentionally breached the HHS draught stopping standard. This claim is not proved. Mould

Related to the issue of moisture ingress is the issue of the presence of mould which the tenant raised.

The presence of mould itself, isn’t a breach of a Healthy Homes standard or related regulation, but it may indicate dampness, which in itself could be indicative of an issue with one of the Healthy Homes standards.

The tenants stated that there was mould growing in a cupboard, and that clothing items they kept in the house grew mould on them. They stated that when they moved in the cupboard was completely black, looked like soot and had a musty smell.

The tenants provided three photographs that show some black marks that could be mould, on the inside of a cupboard. The marks are approximately a metre long, and 200mm wide. The tenants stated that they cleaned the mark but it came back. They claim they kept some fabric in the cupboard, but this began to rot.

The tenants claimed that they had spent twenty-five years setting up an on-line clothing/ fashion store, and because of damage to their stock caused by mould they have suffered thousands of dollars of losses. The tenants stated that one of Ms Mathews gowns that she had designed herself had a value of $6,000.00. However, it was not stated what actually happened to the gown, or how the value was assessed.

The tenants also claimed that because of the dampness they suffered illness and had to take periods off work which caused them financial loss.

The landlord stated that on 6 May 2023 the tenant sent an email to the landlord about many maintenance issues they had identified, and included and attached, pictures of what they identified as mould.

The landlord acknowledged the correspondence on 8 May 2023 and on 30 May 2023 the landlord asked for an opportunity to inspect the premises but the tenants didn’t respond.

On 31 May 2023 the landlord sent a notice of inspection to the tenants, and then received a request from the tenant to defer the inspection.

The landlord claims that an inspection of the premises couldn’t take place until 19 July 2023, due to the tenants deferring appointments.

The landlord engaged Fresh and Up Cleaners who attempted to treat “the mould” but found their treatment did not affect the stained area. They concluded the stain was not mould.

The landlord stated the contractor was told by the tenants that there was also a problem with underfloor dampness, but the tenant was unable to provide any examples of this.

Fresh and Up Cleaners provided an invoice to the landlord dated 26 July 2023.

Mr San Diego submitted that because the complaint was investigated and addressed within a reasonable timeframe the landlord was not in breach of any obligation. Mr San Diego referred the Tribunal to a Tenancy Tribunal case in support of this submission, NZTT4301049, 4303368, 4330006, 4691829, in which Adjudicator Yi states at [13]: “Mould is a joint responsibility of both parties. As long as the landlord does no provide a premises that is affected by mould or dampness, it is the tenant’s responsibility to maintain the premises free from mould.”

Whereas there may be some dispute as to what the black mark in the cupboard was, I do not find that it has been proved to be mould. Part of my reasoning on this is that the tenants appear to have put their belongings in to the cupboard, which would be an unlikely thing to do if it was already significantly and obviously affected by mould from the beginning of the tenancy.

The tenants have not provided photographs or financial records in support of their loss.

I am not persuaded on the balance of probabilities the tenants have suffered loss caused by mould which has resulted from the landlord breaching the Residential Tenancies Act, 1986 or a term of the Tenancy Agreement. These claims are not proved. Maintenance Issues

The tenants, Michelle Linda Mathews and Marcelle Siteine claim that the landlord has breached their obligations under section 45(1)(b) of the Residential Tenancies Act 1986 by failing to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises.

The tenants raised a number of general maintenance issues including: a. The front gate not closing properly. b. A “wire” (actually a telephone cable) sticking up out of the floor in one of the bedrooms. c. The deck was slippery. d. Broken door handle on kitchen cupboard. e. The front room louvre comes out. f. The shower head in the bathroom comes off. g. Garden rubbish was not collected. h. There was no effective drainage in the front yard. i. Doors and windows sticking. j. A leaking skylight in the bathroom.

The gate that the tenants refer to is the front gate to the premises and it opened out on to New North Road, a main road. The tenants stated they had a two- year-old and a six-year-old playing in the front yard when the gate which had been shut swung open due to the bolt and the lock not being aligned. The tenants stated they were terrified their children would run out on to the road, so they stopped the children playing in the front yard.

Mr San Diego produced a receipt from Stephen Nee dated 28 September 2022 for the repair of the gate.

With the exception of the gate, these complaints were poorly presented by the tenants and not supported with documentary information such as photographs, dates, or a record of correspondence with the landlord.

In response Mr San Diego stated that many of these complaints were first brought to the landlord’s attention on 29 August 2023, at the point that rent was well in arrears, the first Tribunal hearing had been held, and a conditional termination had been ordered.

Mr San Diego stated that because the landlord responded in a timely manner, the breach is not made out.

In response the tenants accepted that some things were fixed but many were not, but as stated earlier, the tenancy ended a short time later, on 12 September 2023. Costs

In their application, the tenants raised claims for breaches of Healthy Homes standards, failure to maintain the premises, and consequential damages amounting to $100,000.00.

The claim itself was made after the date of the hearing for the landlord’s application, in which a significant award was made against the tenants for rent arrears.

For such a sizeable claim, it is understandable that a respondent will instruct and rely on the services of legal counsel.

If the tenants’ claims were genuine, and I am not suggesting they were not, they needed to be presented with supporting information. However, in this hearing, the tenants’ application has been poorly made out. Documentary evidence, and details including dates and costs that support their alleged large losses, are totally absent. The likelihood of success for such a claim is poor.

The respondent has provided a Costs Submission in which they are seeking a total of $3,629.00 according to Scale 2B, at $1,910.00 per day, made up as follows: a. Preparation and filing opposition to interlocutory application and supporting affidavits, (0.4) $764.00 b. Preparing written submissions, (1.0) $1,910.00 c. Appearance at defended hearing (0.5) $955.00.

Costs are covered by the Residential Tenancies Act, 1986 section 102 which includes the following: 102Costs ... (2)The Tribunal may make an order of a kind referred to in subsection (3) in any of the following cases: ... (b)where any of the parties was represented by counsel: ... (3)In any case to which subsection (2) applies, the Tribunal may order a party to pay— ... (b)to another party, the reasonable costs of that other party in connection with the proceedings.

“Reasonable costs” was considered in the case of BC 346799 v Ikeda [2020] NZDC 3669, and in discussion factors to be taken into account included a party’s success, length of hearing, amount involved, importance of issues, complexity, urgency, time for effective preparation, any unnecessary steps, arguments without substance, abuse of process, poor presentation, and whether hearing time was lengthened by a party’s conduct.

I accept the costs claimed by Mr San Diego relate to actual preparation for the hearing, and hearing time attendance. To some extent Mr San Diego has clearly not charged for his full costs; for example, he has charged for one full day of hearing time, when in fact he appeared on three different days, including a full day, and a full half-day.

The tenants have been unsuccessful in their application. An adjournment was granted to allow the tenants time to prepare, and yet in the hearing their applications were poorly made and lacked substance. Hearing time has been lengthened by the tenants’ lack of preparation. For example, towards the end of the full day of hearing when the tenants were not progressing their claims by making any submissions, I suggested it was a good time to hear from Mr San Diego in response. Ms Mathews responded with: “We aren’t in a hurry are we? I mean since I’m here in this space I can say everything I want to say.”

In my view, reasonable costs in this case should be calculated towards the high end of the range, and I consider 70% percent of the landlord’s legal costs to be a reasonable contribution to be made by the tenants. This amounts to $2,540.30.