What was the outcome of Tenancy Tribunal case 4841403?

The tribunal order states: Mt Mabel Station Limited and Ian and Lynette Dewes for the Dewes Trust

How much money was awarded in case 4841403?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4841403?

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

Where can I read the official tribunal order for case 4841403?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10382338-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4841403?

The tribunal order states: Mt Mabel Station Limited and Ian and Lynette Dewes for the Dewes Trust

How much money was awarded in case 4841403?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4841403?

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

Where can I read the official tribunal order for case 4841403?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10382338-Tribunal_Order.pdf.

281 Paruwai Road, Tuturumuri, RD 2, Martinborough 5782, Tenancy Tribunal Case 4841403 — State of repair

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281 Paruwai Road, Tuturumuri, RD 2, Martinborough 5782, Tenancy Tribunal Case 4841403 — State of repair | 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 4841403. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

Mt Mabel Station Limited and Ian and Lynette Dewes for the Dewes Trust Partnership must pay Brian Gregory Mullane $3,000.00 immediately being compensation for power.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the tenant and landlord. This is a continuing tenancy, and the Tribunal has previously issued a decision determining that a termination notice from the landlord was a retaliatory notice, and therefore that notice was set aside. The hearing was then adjourned to 10 May 2024, at which I have heard the balance of the claims.
Both parties appeared at the hearing on 10 May 2024 in Masterton

BACKGROUND

This is a tenancy of long duration, although the current tenancy commenced in 2016 by way of a new tenancy agreement. I understand that Mr Mullane lived in the premises since 2012, but given a new tenancy agreement was entered into with the landlords in 2016, then that new agreement is now operative. On that tenancy agreement, the landlords are recorded as Ian and Lynette Dewes for the Dewes Trust Partnership. The sole tenant is Brian Mullane. The premises are located rurally and supplied with water via tank water.
Having heard from the parties, my impression is that over the years there was a good relationship between landlords and tenant, but over the past few years that deteriorated, and the parties are now very aggrieved with one another, leading to these disputes currently before me.
The landlord issued a termination notice, seeking to terminate the tenancy on the grounds that work was needed to the premises. The tenant challenged that termination notice as a retaliatory notice. On 28 March 2024 Adjudicator Greene issued a decision, considering only the issue of the landlord’s termination notice. Mr Greene declared the termination notice to be a retaliatory termination notice, and the notice was therefore set aside. Mr Greene adjourned the remainder of the claims, and those were scheduled before me on 10 May 2024.

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.
Importantly, 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 unlikely, 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. Exemplary damages
The Tribunal must consider claims for exemplary damages.
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.
The tenant has filed a number of claims which I will now consider in turn.

TENANTS CLAIMS

Power charges

The premises, including other premises on the wider rural property, and some farm facilities, are all provided with water via a pumped supply. It is the case that the power to operate that pump, comes from the power supply for this tenancy, meaning that Mr Mullane pays for it. The landlords have looked at the cost of separating off the supply, and it was a very large quote, over $14,000.
However, more recently a check meter has been installed, so at least it can now be determined accurately how much power is used to operate the pump.
The tenant considered that he has been wrongly subsidising the pump operation, so has brought a claim against the landlord for compensation. At the hearing the parties have agreed on a settlement of this claim. It was agreed that the landlord will pay the tenant compensation of $3,000 as full and final settlement for all claims around the electricity supply to the pump. It was also agreed that moving forward the tenant will supply the monthly power charges to the landlord who will pay those power charges and the landlord will also pay half the supply charge. That is accordingly ordered by consent. Exemplary damages for failure to maintain
The tenant seeks exemplary damages for failure to maintain the water supply. The tenant states that when the landlord installed the water tank, the landlord failed to install any filter system. The tenant states that he had raised this when the tank was installed advising a filter system was needed, but the landlord considered that it was not required.
The tenant describes an episode of gastroenteritis on 6 December, and it was later determined from testing that the water was contaminated with E.coli, which the tenant relates to the water supply at the premises.
The tenant states that subsequently the water was treated with a bleach like product, and later still a UV filter was installed.
In response, the landlord states that it was in late December 2023 when the tenant raised the issue. The landlord described what they did such as undertaking testing and treating the water. The landlord states there were some delays given the Christmas shutdown for tradespeople.
The water was sourced from a nearby river.
In conclusion the tenant states that he believes the landlord had deliberately removed the spike from the river so that the pipe was deliberately sitting in a stagnant pond of water intending to make the tenant sick. The landlord refutes this. Analysis
Section 45 of the RTA sets out the landlord’s obligations, and that includes the requirement to maintain the premises.
Given that the landlord has not provided the tenant with his own water tank, then the landlord was obligated to supply water to meet its obligation under section 45(1)(ca). It follows that the landlord would then be required to provide a safe water supply, and I accept the landlord did not achieve that. The RTA is sufficiently broad to accept that undertaking actions to filter or sterilise water, would be a maintenance issue.
However, in order to make an order that the landlord pay the tenant exemplary damages, I would need to find that the landlord intended to breach their obligations, and there is no evidence of that.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first been served on the tenant in the first place.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal 1 that: Before an award for 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.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages.
A second District Court decision of relevance is Peter Stoekeken v Nykala Toheriri and Vince Aso [2022] NZDC 9698, a decision from Judge Tuohy. The dispute in that case included a claim for exemplary damages because the landlord had rented the premises with an exposed electrical wire. Judge Tuohy accepted that the landlord did not know the wire was exposed, but importantly confirmed that: ...S 109(3) of the Act requires the Tribunal to be satisfied that the unlawful act was committed intentionally by the person who committed it before exemplary damages can be awarded.... ...assuming that the landlord is liable for the omissions of his agents as well as his own, I am not satisfied that he or his agents intentionally decided not to carry out an inspection which was sufficiently through to reveal the wire. Even if they ought to have noticed it, that is not equivalent to an intentional act. As the Adjudicator in the second decision stated when declining to award exemplary damages to the landlord, the unlawful act must have been committed intentionally in the sense of deliberately and in full knowledge that they were not meeting their obligations. The evidence does not establish that. In summary, I consider that there are insufficient grounds to award exemplary damages against the landlord in relation to the exposed wire.
In Mr Mullane’s case, there is no evidence that the landlord intentionally caused the water supply to become contaminated, and I doubt they did act in 1 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92 that way. Finding as I do that it has not been proven by the tenant that the landlord breached their obligations intentionally, I find that exemplary damages cannot be ordered. Exemplary damages for breach of quiet enjoyment
The tenant states that the landlord has breached his quiet enjoyment because of needing the tenant to advise of the power charges. The tenant also describes discussions the landlord would raise about politics.
In response to the political discussions, the landlord states that the tenant had never raised concerns around that, the discussions were made informally during discussion over a cup of tea or coffee.
The tenant then described an episode on the farm where lights were shined on his bedroom window from a vehicle on the farm. The tenant states that Mr Dewes was present with two other men, and asked the tenant words to the effect of ‘did we wake you’ and when the tenant advised they had, replied ‘good’. The tenant considers this was retribution for losing in the prior hearing.
The landlord denied that this event happened, and stated that as a working farm people would come and go, and people do need to stop for gates around the tenant’s home. The landlord states that having spoken to the group involved, they dispute that any of this behaviour occurred. Analysis
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined 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.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
As it relates to the political conversations, as I advised the tenant at the hearing, I cannot see this would be harassment. The evidence is that what was discussed was during conversation with the landlord, and I have heard nothing which makes me think the landlord was intending to upset the tenant with what was discussed. That same result must apply for the tenant needing to read the power meter, that is not harassment.
In relation to the event with the vehicle at night, I must ultimately conclude this event has not been proven. What I have is the oral evidence from the tenant saying it did happen, and the oral evidence from the landlord saying it did not happen. I have no reason to prefer the evidence of the tenant over the landlord, and the end result is that I must find the tenant has not proven that this event did occur as described.
I record for completeness that if the tenant had proven that this event did happen, I would have found it to be harassment. Exemplary damages for unlawful entry
The tenant claims exemplary damages for unlawful entry. The tenant states that the landlord would just walk into his house, such as walking into the house to get tools or to switch power on and off on the power board. An example was given of the landlord coming in and borrowing a machete, that was ultimately not returned.
The landlord disputes entering the house uninvited. The landlord states that they did have an episode of installing insulation and a staple gun failed, which the tenant then lent him a replacement, and while the incorrect stapler was returned, that was later corrected. The landlord states he has no idea what the tenant was saying in relation to the machete. Further the landlord states that he has not gone into the tenancy to turn off the power, as there is an isolation switch at the pump that could be used to turn off the power.
In response, the tenant states that the landlord had entered the premises without his knowledge to borrow the staple gun, and one of the landlord’s own staff said he entered without consent. Analysis
A landlord cannot enter the tenancy premises unless in the event of an emergency, with the consent of the tenant, or following notice. The tenant says that none of those situations applied, and that the landlord would enter the premises without notice or permission.
Again this is a claim from the tenant, so the tenant must prove that the unlawful entry occurred. Again there is conflicting evidence on whether the landlord came inside the premises without consent. The tenant is adamant he did, but the landlord is equally adamant he did not. Again I have no reason to prefer one party over the other. In the absence of supporting evidence, I find the claim has not been proven. Exemplary damages for locks
The tenant states that one of the doors did not have a functioning lock
In response the landlord states that the tenant has not previously raised with the landlord that there was a door that did not lock. The landlord states that when the tenant raised this with them, the landlord sent an email asking for a photograph of the lock so they could get it replaced.
The tenant says that the landlord knew well that the door would not lock, because he would come in via that door. Analysis
A landlord must provide locks. My impression is that there was a lock on the door, but it was not working so required replacement. That is a maintenance issue.
I note that while the landlord would be required to maintain the lock, there is also an obligation on the tenant to advise the landlord when maintenance is needed. Section 40(1)(d) sets out the tenant’s responsibilities and holds that the tenant must: notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs; and
I conclude it is more likely than not that the landlord was not aware that the lock needed repair or replacement. The file shows a communication between the parties where the tenant raised this, and the landlord responded appropriately asking for a photograph of the lock so it could be replaced. That does argue for the landlord not being previously aware of the state of the lock, and therefore I find no breach has been established.

LANDLORDS CLAIMS

The only remaining claim from the landlord is a claim for termination on the grounds of antisocial behaviour, an application under section 55A.
The landlord states that the communications from the tenant (as I will discuss shortly) were untrue, and intended to demean the landlord’s character, that it was malicious.
The tenant disputes this claim.
The landlord states they feel harassed and that the tenant is making up lies about the landlord, and that they feel unsafe. Analysis
Section 55A of the Residential Tenancies Act 1986 (RTA), confirms that a landlord can apply to the Tribunal for an order terminating a periodic tenancy on the ground of anti-social behaviour, when: a. There has been 3 separate occasions of anti-social behaviour in connection with the premises, within 90 days. b. On each occasion, the landlord has given the tenant a notice that: i. Describes the specific behaviour; and ii. Advised of the date and approximate location it occurred; and iii. Stating how many notices had been given; and iv. Advising the tenant of a right to challenge the notice in this Tribunal. c. The landlord’s application to terminate the tenancy must be within 28 days of the third notice.
Anti-social behaviour is defined in this section as follows: (7) In this section, anti-social behaviour means— (a) harassment; or (b) any other act or omission (whether intentional or not), if the act or omission reasonably causes alarm, distress, or nuisance that is more than minor.
However the Tribunal cannot make a termination order if in the circumstances of how the behaviour occurred, or the notices were given, it would be unfair to terminate, or if the landlord was issuing the notice in a retaliatory way, because the tenant was asserting some right or ability in relation to the tenancy. The Act confirms that the Tribunal “must not take into account the impact that terminating the tenancy would have on the tenant”.
In this case the landlord provided three notices which would comply with the statutory requirements, as follows:
The first notice was issued on 11 February 2024 stating:
Your continued personal attack against lan. He is legally allowed to walk onto the land to the front door to serve you notices. And your insulting written view of lan in the last paragraph of email 28 January addressed to Lynette, threating lan's integrity and character. lt disrespectful and bullying behaviour that will not be tolerated.
Your continued abusive insulting words and attitude towards lan in email dated 9 Feb to Lynette
lnsults towards lan continue in emails to Lynette 10 Feb 2024 This behaviour will not be tolerated and is causing considerable discomfort to the Landlords
The second notice was also issued on 11 February 2024 stating: Your scapegoater behaviour, transferring blame to lan of multiple things that had happened to you and insisting that he was to blame. The level to which you did this was very confronting and you were not prepared to listen to anything we had to say on the matter. Your mind was made up. you also scapegoatered that lan would be responsible for anything that might happen to your car in the future and to your cats. This is not an acceptable way to treat us and you have made us very uncomfortable on our own property.
The third notice is from 15 April 2024, stating: ln a series of emails to the landlords wrote the following statement (as well as other harassing abuse) while they were trying to sort a matter out connected to the tenancy: "l will be pursuing the removal of the pump from this dwelling as I know that as soon as I am gone, your next victim will be inflicted with the same vile pain that has been operating the entire 8 years you have been here". This is a totally outrageous and malicious statement and is not an acceptable way to behave. lt causes considerable discomfort and concern to the landlords. This harassing, insulting and abusive behaviour undermining the landlord's character continues from what has been pointed out in the previous 2 notices.
As I advised the landlords at the hearing, I do not consider the content of the communications from the tenant (being the basis of the notices) would meet the definition of antisocial behaviour as I have set out above.
I am confident in concluding that the communications from the tenant were legitimate, in the sense that he was communicating to the landlords how he genuinely felt. I do not accept he was making those communications simply intending to upset the landlord.
The communications were I accept heated, but a tenant is entitled to communicate with their landlord if they are not happy about matters at the tenancy. The communications could tip into the category of strongly offensive and becoming antisocial, but these communications were far from that standard.
Unfortunately the parties show a strong dislike for one another, and the Tribunal cannot mend that. At the hearing each party called the other a liar, and the landlord made unsubstantiated allegations against the tenant that I would expect the tenant would have found deeply offensive also. I will not record those allegations in this decision.
What remains is that the landlord has not established antisocial behaviour on the part of the tenant, so this application for termination is dismissed.

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 4841403. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

Mt Mabel Station Limited and Ian and Lynette Dewes for the Dewes Trust Partnership must pay Brian Gregory Mullane $3,000.00 immediately being compensation for power.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the tenant and landlord. This is a continuing tenancy, and the Tribunal has previously issued a decision determining that a termination notice from the landlord was a retaliatory notice, and therefore that notice was set aside. The hearing was then adjourned to 10 May 2024, at which I have heard the balance of the claims.
Both parties appeared at the hearing on 10 May 2024 in Masterton

BACKGROUND

This is a tenancy of long duration, although the current tenancy commenced in 2016 by way of a new tenancy agreement. I understand that Mr Mullane lived in the premises since 2012, but given a new tenancy agreement was entered into with the landlords in 2016, then that new agreement is now operative. On that tenancy agreement, the landlords are recorded as Ian and Lynette Dewes for the Dewes Trust Partnership. The sole tenant is Brian Mullane. The premises are located rurally and supplied with water via tank water.
Having heard from the parties, my impression is that over the years there was a good relationship between landlords and tenant, but over the past few years that deteriorated, and the parties are now very aggrieved with one another, leading to these disputes currently before me.
The landlord issued a termination notice, seeking to terminate the tenancy on the grounds that work was needed to the premises. The tenant challenged that termination notice as a retaliatory notice. On 28 March 2024 Adjudicator Greene issued a decision, considering only the issue of the landlord’s termination notice. Mr Greene declared the termination notice to be a retaliatory termination notice, and the notice was therefore set aside. Mr Greene adjourned the remainder of the claims, and those were scheduled before me on 10 May 2024.

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.
Importantly, 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 unlikely, 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. Exemplary damages
The Tribunal must consider claims for exemplary damages.
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.
The tenant has filed a number of claims which I will now consider in turn.

TENANTS CLAIMS

Power charges

The premises, including other premises on the wider rural property, and some farm facilities, are all provided with water via a pumped supply. It is the case that the power to operate that pump, comes from the power supply for this tenancy, meaning that Mr Mullane pays for it. The landlords have looked at the cost of separating off the supply, and it was a very large quote, over $14,000.
However, more recently a check meter has been installed, so at least it can now be determined accurately how much power is used to operate the pump.
The tenant considered that he has been wrongly subsidising the pump operation, so has brought a claim against the landlord for compensation. At the hearing the parties have agreed on a settlement of this claim. It was agreed that the landlord will pay the tenant compensation of $3,000 as full and final settlement for all claims around the electricity supply to the pump. It was also agreed that moving forward the tenant will supply the monthly power charges to the landlord who will pay those power charges and the landlord will also pay half the supply charge. That is accordingly ordered by consent. Exemplary damages for failure to maintain
The tenant seeks exemplary damages for failure to maintain the water supply. The tenant states that when the landlord installed the water tank, the landlord failed to install any filter system. The tenant states that he had raised this when the tank was installed advising a filter system was needed, but the landlord considered that it was not required.
The tenant describes an episode of gastroenteritis on 6 December, and it was later determined from testing that the water was contaminated with E.coli, which the tenant relates to the water supply at the premises.
The tenant states that subsequently the water was treated with a bleach like product, and later still a UV filter was installed.
In response, the landlord states that it was in late December 2023 when the tenant raised the issue. The landlord described what they did such as undertaking testing and treating the water. The landlord states there were some delays given the Christmas shutdown for tradespeople.
The water was sourced from a nearby river.
In conclusion the tenant states that he believes the landlord had deliberately removed the spike from the river so that the pipe was deliberately sitting in a stagnant pond of water intending to make the tenant sick. The landlord refutes this. Analysis
Section 45 of the RTA sets out the landlord’s obligations, and that includes the requirement to maintain the premises.
Given that the landlord has not provided the tenant with his own water tank, then the landlord was obligated to supply water to meet its obligation under section 45(1)(ca). It follows that the landlord would then be required to provide a safe water supply, and I accept the landlord did not achieve that. The RTA is sufficiently broad to accept that undertaking actions to filter or sterilise water, would be a maintenance issue.
However, in order to make an order that the landlord pay the tenant exemplary damages, I would need to find that the landlord intended to breach their obligations, and there is no evidence of that.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first been served on the tenant in the first place.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal 1 that: Before an award for 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.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages.
A second District Court decision of relevance is Peter Stoekeken v Nykala Toheriri and Vince Aso [2022] NZDC 9698, a decision from Judge Tuohy. The dispute in that case included a claim for exemplary damages because the landlord had rented the premises with an exposed electrical wire. Judge Tuohy accepted that the landlord did not know the wire was exposed, but importantly confirmed that: ...S 109(3) of the Act requires the Tribunal to be satisfied that the unlawful act was committed intentionally by the person who committed it before exemplary damages can be awarded.... ...assuming that the landlord is liable for the omissions of his agents as well as his own, I am not satisfied that he or his agents intentionally decided not to carry out an inspection which was sufficiently through to reveal the wire. Even if they ought to have noticed it, that is not equivalent to an intentional act. As the Adjudicator in the second decision stated when declining to award exemplary damages to the landlord, the unlawful act must have been committed intentionally in the sense of deliberately and in full knowledge that they were not meeting their obligations. The evidence does not establish that. In summary, I consider that there are insufficient grounds to award exemplary damages against the landlord in relation to the exposed wire.
In Mr Mullane’s case, there is no evidence that the landlord intentionally caused the water supply to become contaminated, and I doubt they did act in 1 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92 that way. Finding as I do that it has not been proven by the tenant that the landlord breached their obligations intentionally, I find that exemplary damages cannot be ordered. Exemplary damages for breach of quiet enjoyment
The tenant states that the landlord has breached his quiet enjoyment because of needing the tenant to advise of the power charges. The tenant also describes discussions the landlord would raise about politics.
In response to the political discussions, the landlord states that the tenant had never raised concerns around that, the discussions were made informally during discussion over a cup of tea or coffee.
The tenant then described an episode on the farm where lights were shined on his bedroom window from a vehicle on the farm. The tenant states that Mr Dewes was present with two other men, and asked the tenant words to the effect of ‘did we wake you’ and when the tenant advised they had, replied ‘good’. The tenant considers this was retribution for losing in the prior hearing.
The landlord denied that this event happened, and stated that as a working farm people would come and go, and people do need to stop for gates around the tenant’s home. The landlord states that having spoken to the group involved, they dispute that any of this behaviour occurred. Analysis
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined 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.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
As it relates to the political conversations, as I advised the tenant at the hearing, I cannot see this would be harassment. The evidence is that what was discussed was during conversation with the landlord, and I have heard nothing which makes me think the landlord was intending to upset the tenant with what was discussed. That same result must apply for the tenant needing to read the power meter, that is not harassment.
In relation to the event with the vehicle at night, I must ultimately conclude this event has not been proven. What I have is the oral evidence from the tenant saying it did happen, and the oral evidence from the landlord saying it did not happen. I have no reason to prefer the evidence of the tenant over the landlord, and the end result is that I must find the tenant has not proven that this event did occur as described.
I record for completeness that if the tenant had proven that this event did happen, I would have found it to be harassment. Exemplary damages for unlawful entry
The tenant claims exemplary damages for unlawful entry. The tenant states that the landlord would just walk into his house, such as walking into the house to get tools or to switch power on and off on the power board. An example was given of the landlord coming in and borrowing a machete, that was ultimately not returned.
The landlord disputes entering the house uninvited. The landlord states that they did have an episode of installing insulation and a staple gun failed, which the tenant then lent him a replacement, and while the incorrect stapler was returned, that was later corrected. The landlord states he has no idea what the tenant was saying in relation to the machete. Further the landlord states that he has not gone into the tenancy to turn off the power, as there is an isolation switch at the pump that could be used to turn off the power.
In response, the tenant states that the landlord had entered the premises without his knowledge to borrow the staple gun, and one of the landlord’s own staff said he entered without consent. Analysis
A landlord cannot enter the tenancy premises unless in the event of an emergency, with the consent of the tenant, or following notice. The tenant says that none of those situations applied, and that the landlord would enter the premises without notice or permission.
Again this is a claim from the tenant, so the tenant must prove that the unlawful entry occurred. Again there is conflicting evidence on whether the landlord came inside the premises without consent. The tenant is adamant he did, but the landlord is equally adamant he did not. Again I have no reason to prefer one party over the other. In the absence of supporting evidence, I find the claim has not been proven. Exemplary damages for locks
The tenant states that one of the doors did not have a functioning lock
In response the landlord states that the tenant has not previously raised with the landlord that there was a door that did not lock. The landlord states that when the tenant raised this with them, the landlord sent an email asking for a photograph of the lock so they could get it replaced.
The tenant says that the landlord knew well that the door would not lock, because he would come in via that door. Analysis
A landlord must provide locks. My impression is that there was a lock on the door, but it was not working so required replacement. That is a maintenance issue.
I note that while the landlord would be required to maintain the lock, there is also an obligation on the tenant to advise the landlord when maintenance is needed. Section 40(1)(d) sets out the tenant’s responsibilities and holds that the tenant must: notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs; and
I conclude it is more likely than not that the landlord was not aware that the lock needed repair or replacement. The file shows a communication between the parties where the tenant raised this, and the landlord responded appropriately asking for a photograph of the lock so it could be replaced. That does argue for the landlord not being previously aware of the state of the lock, and therefore I find no breach has been established.

LANDLORDS CLAIMS

The only remaining claim from the landlord is a claim for termination on the grounds of antisocial behaviour, an application under section 55A.
The landlord states that the communications from the tenant (as I will discuss shortly) were untrue, and intended to demean the landlord’s character, that it was malicious.
The tenant disputes this claim.
The landlord states they feel harassed and that the tenant is making up lies about the landlord, and that they feel unsafe. Analysis
Section 55A of the Residential Tenancies Act 1986 (RTA), confirms that a landlord can apply to the Tribunal for an order terminating a periodic tenancy on the ground of anti-social behaviour, when: a. There has been 3 separate occasions of anti-social behaviour in connection with the premises, within 90 days. b. On each occasion, the landlord has given the tenant a notice that: i. Describes the specific behaviour; and ii. Advised of the date and approximate location it occurred; and iii. Stating how many notices had been given; and iv. Advising the tenant of a right to challenge the notice in this Tribunal. c. The landlord’s application to terminate the tenancy must be within 28 days of the third notice.
Anti-social behaviour is defined in this section as follows: (7) In this section, anti-social behaviour means— (a) harassment; or (b) any other act or omission (whether intentional or not), if the act or omission reasonably causes alarm, distress, or nuisance that is more than minor.
However the Tribunal cannot make a termination order if in the circumstances of how the behaviour occurred, or the notices were given, it would be unfair to terminate, or if the landlord was issuing the notice in a retaliatory way, because the tenant was asserting some right or ability in relation to the tenancy. The Act confirms that the Tribunal “must not take into account the impact that terminating the tenancy would have on the tenant”.
In this case the landlord provided three notices which would comply with the statutory requirements, as follows:
The first notice was issued on 11 February 2024 stating:
Your continued personal attack against lan. He is legally allowed to walk onto the land to the front door to serve you notices. And your insulting written view of lan in the last paragraph of email 28 January addressed to Lynette, threating lan's integrity and character. lt disrespectful and bullying behaviour that will not be tolerated.
Your continued abusive insulting words and attitude towards lan in email dated 9 Feb to Lynette
lnsults towards lan continue in emails to Lynette 10 Feb 2024 This behaviour will not be tolerated and is causing considerable discomfort to the Landlords
The second notice was also issued on 11 February 2024 stating: Your scapegoater behaviour, transferring blame to lan of multiple things that had happened to you and insisting that he was to blame. The level to which you did this was very confronting and you were not prepared to listen to anything we had to say on the matter. Your mind was made up. you also scapegoatered that lan would be responsible for anything that might happen to your car in the future and to your cats. This is not an acceptable way to treat us and you have made us very uncomfortable on our own property.
The third notice is from 15 April 2024, stating: ln a series of emails to the landlords wrote the following statement (as well as other harassing abuse) while they were trying to sort a matter out connected to the tenancy: "l will be pursuing the removal of the pump from this dwelling as I know that as soon as I am gone, your next victim will be inflicted with the same vile pain that has been operating the entire 8 years you have been here". This is a totally outrageous and malicious statement and is not an acceptable way to behave. lt causes considerable discomfort and concern to the landlords. This harassing, insulting and abusive behaviour undermining the landlord's character continues from what has been pointed out in the previous 2 notices.
As I advised the landlords at the hearing, I do not consider the content of the communications from the tenant (being the basis of the notices) would meet the definition of antisocial behaviour as I have set out above.
I am confident in concluding that the communications from the tenant were legitimate, in the sense that he was communicating to the landlords how he genuinely felt. I do not accept he was making those communications simply intending to upset the landlord.
The communications were I accept heated, but a tenant is entitled to communicate with their landlord if they are not happy about matters at the tenancy. The communications could tip into the category of strongly offensive and becoming antisocial, but these communications were far from that standard.
Unfortunately the parties show a strong dislike for one another, and the Tribunal cannot mend that. At the hearing each party called the other a liar, and the landlord made unsubstantiated allegations against the tenant that I would expect the tenant would have found deeply offensive also. I will not record those allegations in this decision.
What remains is that the landlord has not established antisocial behaviour on the part of the tenant, so this application for termination is dismissed.

Tenancy Tribunal case 4841403 — State of repair at 281 Paruwai Road, Tuturumuri, RD 2, Martinborough 5782,

At a glance

Tenancy Tribunal case 4841403 — State of repair at 281 Paruwai Road, Tuturumuri, RD 2, Martinborough 5782,

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

LANDLORDS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

LANDLORDS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions