What was the outcome of Tenancy Tribunal case 4699654?

The tribunal order states: The Tribunal declares that the landlord’s notice to terminate the tenancy was a

How much money was awarded in case 4699654?

Cleaning: $175.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4699654?

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

Where can I read the official tribunal order for case 4699654?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10168395-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4699654?

The tribunal order states: The Tribunal declares that the landlord’s notice to terminate the tenancy was a

How much money was awarded in case 4699654?

Cleaning: $175.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4699654?

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

Where can I read the official tribunal order for case 4699654?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10168395-Tribunal_Order.pdf.

190 Pukehina Parade, Pukehina, RD 9, Pukehina 3189 Tenancy Tribunal Case 4699654 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4699654 — net $1,675.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Septic tank cleaning (consent	$175.00	Septic tank cleaning (consent
Exemplary damages: Retaliatory notice	$1,500.00	Retaliatory notice
Net award	$1,675.00
Total payable by Landlord to Tenant	$1,675.00

Claims and awards in Tenancy Tribunal application 4699654 — net $1,675.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Septic tank cleaning (consent	$175.00	Septic tank cleaning (consent
Exemplary damages: Retaliatory notice	$1,500.00	Retaliatory notice
Net award	$1,675.00
Total payable by Landlord to Tenant	$1,675.00

Order

The Tribunal declares that the landlord’s notice to terminate the tenancy was a retaliatory notice.
Wayne John Grayson must pay Richard Anthony Howard $1,675.00 immediately, calculated as shown in table below:
The application for exemplary damages for the landlord’s failure to comply with the Healthy Homes Standards is dismissed.
The application for compensation for repair costs (other than the cost of septic tank cleaning) incurred by the tenant is dismissed.

Reasons

Both parties attended the hearing.
On 5 December 2023, the Tribunal made an order setting aside the landlord’s notice to terminate the tenancy. The Tribunal made no finding as to whether the notice to terminate was a retaliatory notice; that issue was reserved for today.
The tenancy ended on 20 December 2023 as ordered by the Tribunal.
The tenant’s claims for compensation and exemplary damages were adjourned for an in-person hearing. The tenant’s claims – compensation and exemplary damages
The tenant alleges that the landlord’s notice to terminate the tenancy was in retaliation for him claiming repair costs for work he has undertaken, work for which he now seeks compensation.
The tenant also alleges that the premises were not compliant with the Healthy Homes Standards (HHS) because there were no extraction fans in the bathroom or kitchen and there was no underfloor insulation and only partial insulation in the ceiling. Issues
The Tribunal must therefore determine the following: •Has the tenant proved claims against the landlord for breaches that amount to unlawful acts? If so, should the Tribunal award exemplary damages? •Has the tenant proved claims for compensation for work he did at the premises? Legal considerations
The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. The tenant’s compensation claims are for actual losses, costs he says he incurred for repairs he did.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
Exemplary damages are different. They 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 of the Residential Tenancies Act 1986 (RTA).
In Birch v Otautahi Community Housing Trust (referred to above) the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest.
Section 54 RTA provides: Tribunal may declare retaliatory notice of no effect (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect. Has the tenant proved claims against the landlord for breaches that amount to unlawful acts? If so, should the Tribunal award exemplary damages?
The tenant alleged that the premises were not HHS compliant. He said there were no extraction fans in the bathroom and kitchen, nor was there underfloor insulation or full insulation in the ceiling.
The landlord said there were openable windows in the kitchen and bathroom. He said there was foil insulation under the floor and that the insulation in the ceiling was between the lining and the roofing iron.
The HHS have different implementation dates, depending on when the tenancy started. Here, the tenancy started in June 2019, so the landlord has until 2025 to ensure full compliance with the HHS.
The insulation standard is one the landlord did have to comply with since its implementation date has well since passed. However, other than make the allegation, which the landlord denies, the tenant did not produce any evidence to demonstrate non-compliance; in other words, what was deficient and why?
The onus of proof rests with the tenant. Without some objective evidence of non-compliance with the insulation standard I do not find proved a breach by the landlord that amounts to an unlawful act.
The notice to terminate is different. The tenant set out a list of repairs he considered necessary in a latter to the landlord dated 5 September 2023. The same letter set out his compensation claims which I will address later.
The landlord’s notice to terminate the tenancy is dated 1 October 2023. The last adjudicator recorded that it was handed to the tenant on 5 October. It said the tenancy would end on 6 December 2023 because the owner required the premises within 90 days after the termination date as a place of residence for him or a member of his family.
I find that the notice to terminate the tenancy was given in retaliation for the tenant requiring repairs to be carried out. Further, the reason given was trumped up.
In evidence, the landlord said he required the premises for his niece and sister to move into after flooding in Hawkes Bay. But he said they then found other housing so did not need to move. Yet, he did not revoke the notice.
The landlord produced no evidence to prove that his niece and sister had agreed to move into the premises. He was on notice that he needed to do that. The adjudicator said in her order dated 5 December 2023: There needs to be some actual evidence to support the notice. If the house is being sold then the landlord needs to provide – for example - an agreement with a real estate agent. If the landlord or a family member want to live in the house then – for example - an employment contract, travel dates, or moving details are required.
The tenant gave evidence that the premises have a for sale sign erected. The landlord said he just allowed a real estate agent friend to put up a sign ‘for advertising purposes’. I did not find that explanation credible.
I find that the landlord wanted the tenant gone after he set out the repair work he wanted done to the premises. .
The reason for the termination notice does not withstand objective scrutiny. The premises are probably on the market for sale. The landlord said it was his business if he sold the premises; if the right buyer came along, he would sell. But that was not the reason he gave for terminating the tenancy.
The Tribunal extended the possession date by 13 days only. The explanation that the landlord’s niece and sister could not take possession due to the tenant not moving out is not convincing.
I declare the termination notice to be a retaliatory notice. I find that the landlord, in giving the notice, acted with intent. The landlord’s action had an effect on the tenant and was against his interests. It is against the public interest for landlords to intentionally end a tenancy without genuine grounds and in retaliation for a complaint by the tenant in relation to the tenancy.
For this unlawful act, I award the tenant exemplary damages of $1,500.00. Has the tenant proved claims for compensation for work he did at the premises?
The landlord accepted the tenant’s claim for the cost of septic tank cleaning. I allow that claim by consent - $175.00.
The tenant has claims for reimbursement for other work he says he did that amount to $2,070.00.
The landlord denied ever being advised of the need for the work the tenant says he did, nor of having received the invoices/receipts the tenant said he had sent to him.
The tenant confirmed that he had no invoices to produce in evidence.
This claim fails for lack of proof. Without invoices and receipts, the Tribunal will not award compensation for costs said to have been incurred.
The tenant’s application for compensation for the cost of work he says he did at the premises is dismissed. Other issues
In his application, the tenant refers to ‘over-paid rent’. He did not address this issue at the hearing. In correspondence to the landlord the tenant mentions a landlord claim for rent arrears that was resolved following a meeting between him and the landlord.
Because the tenant produced no evidence of any claim for over paid rent, nor did he address it, the Tribunal could simply dismiss the application. However, the amount mentioned seems significant, so the tenant may, if there is still an outstanding claim for rent, make a new application confined to the issue of rent. But he would need to produce sufficient evidence in the form of rent records, rather than simply state that he is owed over-paid rent.
The tenant produced an invoice for the cost of carpet drying following a flood from a burst pipe on the washing machine. That is not an amount for which the landlord is liable since no breach by the landlord of any statutory responsibility has been proved.
The tenant said he had contents insurance, but his insurer would not accept the claim as the carpet was not his.
The landlord said his insurer might have covered the cost had he been notified of the burst pipe.
The parties can still try and resolve that issue if the landlord can make an insurance claim. It is not a matter for the Tribunal to determine. Result
The tenant’s application for compensation and exemplary damages for breaches of the HHS standards is dismissed.
The Tribunal declares the landlord’s notice to terminate the tenancy a retaliatory notice and awards the tenant exemplary damages of $1,500.00 for this unlawful act by the landlord.
By consent, the landlord will pay the tenant $175.00 for the cost of cleaning the septic tank.
In total, the landlord will pay the tenant $1,657.00.
No award of the filing fee is made as the application is only partly successful. Name suppression
The tenant applied for an order for name suppression. As the application is only partly successful, I make no order for name suppression as the criteria for suppression set out in section 95A RTA are not met.

Tenancy Tribunal case 4699654 — Exemplary damages at 190 Pukehina Parade, Pukehina, RD 9, Pukehina 3189

At a glance

Tenancy Tribunal case 4699654 — Exemplary damages at 190 Pukehina Parade, Pukehina, RD 9, Pukehina 3189

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions