What was the outcome of Tenancy Tribunal case 4847942?

The tribunal order states: Rajeev Goyal must pay Gunther Fester and Shoulyn Singh $13,783.38

How much money was awarded in case 4847942?

Compensation: Loss of amenity, stres…: $115.71 awarded to tenant; Compensation: rent rebate to compens…: $3,600.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $3,250.00 awarded to tenant; Property Damage: $3,250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Garage And Her Hot Water From 01/08/…: $308.57 awarded to tenant; Inconvenience- Driveway From 26/02/2…: $697.50 awarded to tenant; Other Tenant’S Use Of His Power To C…: $762.86 awarded to tenant; Previous Order Application 4788140 D…: $2,445.44 awarded to tenant; Rent Arrears: $2,267.14 awarded to landlord

What type of tenancy dispute was case 4847942?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4847942?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10845813-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4847942?

The tribunal order states: Rajeev Goyal must pay Gunther Fester and Shoulyn Singh $13,783.38

How much money was awarded in case 4847942?

Compensation: Loss of amenity, stres…: $115.71 awarded to tenant; Compensation: rent rebate to compens…: $3,600.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $3,250.00 awarded to tenant; Property Damage: $3,250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Garage And Her Hot Water From 01/08/…: $308.57 awarded to tenant; Inconvenience- Driveway From 26/02/2…: $697.50 awarded to tenant; Other Tenant’S Use Of His Power To C…: $762.86 awarded to tenant; Previous Order Application 4788140 D…: $2,445.44 awarded to tenant; Rent Arrears: $2,267.14 awarded to landlord

What type of tenancy dispute was case 4847942?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4847942?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10845813-Tenancy_Tribunal_Order.pdf.

28 Coburg Street, Henderson, Auckland 0612 Tenancy Tribunal Case 4847942 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4847942 — net $13,783.38 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears (to 24 Match 2024	$2,267.14		9. The tenants produced text messages between Mr Fester and the landlord that show the landlord did not provide the tenants with any rent records and at the en…
Previous order application 4788140 dated 20/03/2024		$2,445.44	Previous order application 4788140 dated 20/03/2024
Exemplary damages: Failure to keep business records		$350.00	Failure to keep business records
Exemplary damages: Breaches of s13A- contents of		$750.00	Breaches of s13A- contents of
Exemplary damages: Breach of quiet enjoyment		$500.00	73. I make an order for the landlord to pay $500.00 in exemplary damages for its breach of s48(2) (d) of the RTA.
Compensation: Loss of amenity, stress and		$115.71	Loss of amenity, stress and
inconvenience- driveway from 26/02/24 to 24/03/24		$697.50	inconvenience- driveway from 26/02/24 to 24/03/24
Compensation: rent rebate to compensate tenant for		$3,600.00	60. I make an order for the landlord to pay $3,600.00 in exemplary damages for its breach of s48(2) (d) of the RTA.
other tenant’s use of his power to charge her car in the		$762.86	other tenant’s use of his power to charge her car in the
garage and her hot water from 01/08/23 to 24/03/24 at		$308.57	garage and her hot water from 01/08/23 to 24/03/24 at
Exemplary damages: Unlawful notice- s60AA breach		$3,250.00	Unlawful notice- s60AA breach
Exemplary damages: Retaliatory notice-s54(3) breach		$3,250.00	Retaliatory notice-s54(3) breach
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$2,267.14	$16,050.52
Net award		$13,783.38
Bond		$2,760.00
Total payable by Landlord to Tenant		$13,783.38

Claims and awards in Tenancy Tribunal application 4847942 — net $13,783.38 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears (to 24 Match 2024	$2,267.14		9. The tenants produced text messages between Mr Fester and the landlord that show the landlord did not provide the tenants with any rent records and at the en…
Previous order application 4788140 dated 20/03/2024		$2,445.44	Previous order application 4788140 dated 20/03/2024
Exemplary damages: Failure to keep business records		$350.00	Failure to keep business records
Exemplary damages: Breaches of s13A- contents of		$750.00	Breaches of s13A- contents of
Exemplary damages: Breach of quiet enjoyment		$500.00	73. I make an order for the landlord to pay $500.00 in exemplary damages for its breach of s48(2) (d) of the RTA.
Compensation: Loss of amenity, stress and		$115.71	Loss of amenity, stress and
inconvenience- driveway from 26/02/24 to 24/03/24		$697.50	inconvenience- driveway from 26/02/24 to 24/03/24
Compensation: rent rebate to compensate tenant for		$3,600.00	60. I make an order for the landlord to pay $3,600.00 in exemplary damages for its breach of s48(2) (d) of the RTA.
other tenant’s use of his power to charge her car in the		$762.86	other tenant’s use of his power to charge her car in the
garage and her hot water from 01/08/23 to 24/03/24 at		$308.57	garage and her hot water from 01/08/23 to 24/03/24 at
Exemplary damages: Unlawful notice- s60AA breach		$3,250.00	Unlawful notice- s60AA breach
Exemplary damages: Retaliatory notice-s54(3) breach		$3,250.00	Retaliatory notice-s54(3) breach
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$2,267.14	$16,050.52
Net award		$13,783.38
Bond		$2,760.00
Total payable by Landlord to Tenant		$13,783.38

Order

Rajeev Goyal must pay Gunther Fester and Shoulyn Singh $13,783.38 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,760.00 (5260007-003) to Gunther Fester and Shoulyn Singh immediately.
This order incorporates the Tribunal order made on 20 March 2024 under application 4788140 for enforcement purposes.

Reasons

Both parties attended the hearing today. Ms Singh did not appear as she has just had a baby. Mr Fester confirmed that he represented both tenant parties.
The tenant applied for compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Prior Tribunal Order
On 20 March 2024 the Tribunal made an order relating to this tenancy, for compensation of $2,280.00 for the landlord’s failure to address a water pressure/hot water problem and compensation of $145.00 for a break in the subfloor and the filing fee of $20.44.
The previous order is incorporated into this order for enforcement purposes.
The landlord and tenants confirmed the landlord has not made any payment of the remedies awarded to the tenant under this Tribunal Order. The full $2445.44 is still owing.
The tenants say they have waited to enforce the judgment debt until the hearing today had been decided, so as not to incur double the amount of enforcement fees. However, the enforcement fees incurred will be added to the landlord’s debt to the tenant.

How much is owed for rent and water rates?

The tenancy ended on by mutual agreement on 24 March 2024. This agreement is recorded in the Tribunal’s 20 March 2024 Order.
The landlord has not made a counterclaim. However, by the parties consent, I record that the tenants agree to pay the 3weeks and 2 days rent they withheld out of frustration that the landlord did not repair and maintain the premise in accordance with his s45(1)(b) of the Residential Tenancies Act 1986 (RTA) obligations.
The tenants produced text messages between Mr Fester and the landlord that show the landlord did not provide the tenants with any rent records and at the end of the tenancy had no accurate records of what rent and water rates arrears the tenants owed. After Mr Fester went through his bank statements, he confirmed the tenants owed 3 weeks and 2 days rent and the landlord reluctantly accepted the tenant’s rent records as being an accurate representation of what was owed.
The landlord has continued to withhold the tenants’ bond without lawful reason, as he owed the tenant $2,445.44, which is more than the $2, 267.14 rent arrears owed by the tenant. In addition, the landlord has sent Mr Fester text messages about water rates owing. However, the landlord has never provided the tenants with any invoices for water rates and then tried to bill the tenants for two fifths of the total water usage for the two separate households that are on one water meter.
The landlord says the water rates bill went straight to the premise and the two separate tenants, with two separate tenancy agreements and two separate households, should have got it from the letter box and worked out how much of each bill to pay each month. This was never communicated to the tenants and as such they were never aware of how much water was being used by them.
The parties say that they had a high-level discussion about the tenants paying two fifths of the water bills before the tenancy commenced. However, as the Tribunal’s 20 March 2024 Order records, there was a significant issue with water supply to the tenants premise and the tenants dispute that they should be held liable for two fifths of the total water consumption for the two separate households when the other household was able to use their shower, dishwasher and the washing machine, while the tenants were unable to do any of these things due to the issues with water supply to their portion of the premise.
I am satisfied that the tenants cannot be held liable for any water rates for the duration of their tenancy for the following reasons: a. The landlord is legally liable for the water charges for both households as: i. the property did not have a separate water meter for the tenants’ household; and ii. the water charges cannot be exclusively attributed to the tenants’ use of the property. b. The landlord cannot expect the tenants to get the water bills directly from Watercare and work out with the other household who is going to pay what portion of the consumption charges directly to Watercare with no oversight by the landlord, and with no commitment by the landlord to pay the fixed water charges that landlords are always solely responsible for; and c. The landlord is estopped from doing nothing to address payment for water usage during the tenancy and then withholding the tenants’ bond to use it to offset water arrears that the landlord has failed to bill the tenants for at any stage during and after their tenancy and has failed to account for by putting a metering system in place to allow him to charge the tenants for their water usage.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs that are not working at the end of the tenancy.
The landlord says the tenants did not leave the premises reasonably clean and tidy, did not remove all rubbish and did not replace the light bulbs that were not working.
Section 40(1)(e)(iii) of the RTA confirms that on termination of the tenancy, the tenant must “leave the premises in a reasonably clean and reasonably tidy condition”. This provision does not impose an absolute standard of responsibility. The obligation is not to leave the premises in an immaculate standard of cleanliness and tidiness, nor does it mean that it will necessarily be up to the standard that a landlord might consider for a new tenant, for sale, or for the owner to re-occupy 1 : The standard will vary according to the age and condition of the premises and, in particular, the condition that they were in at the start of the tenancy 2 :The test is objective and not based on the subjective opinion of either the landlord or the tenant.
In Housing New Zealand Ltd v Holloway Auckland TT 215/93, 8 February 1993 the Tribunal stated: “‘Reasonably tidy’ grounds are not perfect ‘prizewinning’ grounds, but neither [are they] grounds that suggest a property is unoccupied, or constitute a health hazard (vermin) or fire risk. Rather [it is] something in between; grounds maintained to a standard that an average, reasonable bystander would consider ‘reasonably tidy’.”
Equally, the inside of a premise does not have to be left at hotel or motel standard, but at a standard an average, reasonable bystander would consider “reasonably clean and tidy”.
The tenants produced photographic evidence of the issues the landlord found during the final inspection. Those photographs do not prove the house was not left in a reasonably clean and tidy condition. The small rubbish items left could 1 Face Property Management Ltd v Mike Bourne Contracting Ltd Christchurch TT 12/00532/CH, 24 August 2012. 2 Westwood v Western [1994] DCR 759. have and would have been picked up by the tenants had they been able to attend the exit inspection and would have allowed the tenants to do any final spot cleaning required by the landlord.
The tenants say the landlord refused to provide them with a date and time for this inspection and then withheld their bond based on minor issues that the tenants could have resolved on the spot has they been at the final inspection.
The parties also confirmed there was never an entry inspection undertaken and as such there was no way for the parties to compare the state of the property before and after the tenancy and if all the light bulbs were in working order at the commencement of the tenancy. The landlord says the house had been renovated just prior to the tenants moving in and that should be enough to prove the house was in a cleaner and tidier state than when the tenants left it.
The landlord did not produce any receipts for light bulb purchases, for cleaning or rubbish removal to the tenants at the end of their tenancy nor at today’s hearing.
The landlord’s claim for an offset against the tenants’ bond for undefined amounts of cleaning, replacement of light bulbs and rubbish removal costs is dismissed because the landlord has not provided evidence to support these claims and the tenants have provided evidence which disproves liability for cleaning and rubbish removal costs.
Based on the evidence before me, I find the premise was at standard that an average, reasonable bystander would consider “reasonably tidy” and there was no proof that any of the light bulbs were not working at the end of the tenancy, nor that they were all working at the start of the tenancy.
I uphold the tenants claim to have their full bond refunded as the landlord has not proven it has any valid claims against the bond. Breaches of the landlord’s section 45(1) of the RTA obligations
Gunther Fester and Shoulyn Singh claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
The tenants claim the landlord breached several of its s45 of the RTA obligations to them.
Breaching any of the landlords s45 of the RTA obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Regardless of the number breaches of the landlord’s obligations under section 45 of the RTA, they are still considered to be a breach of one section of the RTA. I can only make an order to the maximum of $7,200.00 for any breaches under section 45(1A), but I can consider that there are a number of breaches within that section.
General damages may be awarded for breaches of s45 of the RTA and these general come in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenant.
The award of exemplary damages for any proven breaches of s45 of the RTA will be quantified with the other s45 breaches later in this decision.
The general damages for any proven s45 of the RTA breach will be awarded under each separate s45 obligation heading set out below. A.Failure to maintain Lawns
The tenants say the landlord retained responsibility for mowing the lawns and keeping the yard tidy and that the landlord only did the lawn’s once during the tenancy. The lawns were done a second time when the tenants engaged and paid a contractor to mow them when they became too long and unwieldy. The tenants confirmed the landlord reimbursed them for this cost.
The landlord did not refute the tenants claim.
I award the tenants a rent rebate of $20.00 per week for the duration of their tenancy, being 1 July 2023 to 24 March 2024 (38 weeks and 1 day), a total award of $762.86. Rotten floor boards
The tenants say the floorboards outside their bathroom were rotten and the landlord did not repair these boards from 7 December 2023 to 24 March 2024 (15 weeks and 3 days).
The landlord did not dispute taking this long to address the rotten flooring.
I am satisfied the landlord was informed of this issue by the tenants on 7 December 2023 and that this issue had not been remedied by the end of the tenancy.
I award the tenants a rent rebate of $20.00 per week for the15 week and 5 day period, a total award of $308.57.
I find Rajeev Goyal, in failing to meet his s45(1)(b) of the RTA obligations to the tenants, has committed an unlawful act. Further, I find that the landlord’s breaches were intentional as he knew of the repair and maintenance requirements and intentionally failed to remedy these issues in a reasonable timeframe.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.
I will address the issue of exemplary damages in relation to the tenants’ failure to maintain claims at the end of the s45(1) breaches section of this Order. B.Breach of Healthy Homes Standards
Gunther Fester and Shoulyn Singh claims 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). Gunther Fester and Shoulyn Singh considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The tenancy commenced on 1 July 2023, well after the requirement for landlords to comply with the healthy homes standards within 90 days of a tenancy commencing. Therefore, the rental premise needed to be healthy homes compliant by Friday 29 September 2023.
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 when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances.
The tenancy agreement is extremely scant on the healthy homes compliance information. Under the moisture ingress and drainage standard section, it records that the rental premise has gutters and downpipes that efficiently drain storm water, surface water, and ground water to an appropriate outfall. It does not record that the premise has a subfloor space that is enclosed and that there was no ground moisture barrier installed in that subfloor space.
The male tenant is a builder and he confirmed there was no ground moisture barrier and that this had led to the rotten floorboards near the bathroom as well as considerable amounts of black mould in the corners of the ceilings in several of the rooms.
The landlord did not deny that there was no ground moisture barrier, but stated he was told by the vendor that the premise was healthy homes complaint when he had purchased it in late June 2023. He did not have a healthy homes report and did not appear to have received one from the vendor when he purtchased the property. The landlord indicated he had taken the vendor at his word and not investigated whether the premise was healthy homes complaint before letting it to the tenants.
The tenants say they suspect the house would fail more than the moisture ingress and drainage standard but have not gone to the cost of having a healthy homes assessment undertaken themselves to prove the degree to which the premise does not comply with all the standards. The tenants did raise the mould issue with the landlord as being an issue that was related to the failure of the premise to meet healthy homes standards and was told to open some windows and that would fix the issue. The landlord never investigated the reason for the mouldy ceilings and the rotten floorboards nor he take any steps to remedy the issue causing the mould in the lounge and back bedroom nor to pay to have the mould cleaned professionally from these ceilings and then monitor any regrowth.
The landlord could not confirm whether the premise is healthy homes compliant. He told me he has a healthy homes report, but it was not produced at the hearing and the tenants confirm they had never received a copy of it. The landlord did however refute the mould and dampness was because of a water ingress issues. He stated the tenants did not ventilate the premise and kept all the windows closed all the time. The tenants denied this and said they always had windows open. The male tenant confirmed he had checked the premise and as a builder could confirm the house has moisture ingress issues that need to be resolved.
In this case I have determined that the tenant has proven the premise does not meet the moisture ingress and drainage standard and that this breach of s45(1)(bb) of the RTA has led to the premise becoming damp and mouldy.
I find Rajeev Goyal committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.
The landlord should have been aware that he was required to ensure the premise met the healthy homes standards and he should have taken steps to enquire whether the premise was healthy homes compliant before he let it out, instead of taking the vendor’s word for it during the sales and purchase process. The landlord also did not take steps to have the moisture ingress and ground moisture barrier issues investigated after these were raised by the tenants. As such, I conclude on the balance of probabilities that the landlord knew the premise was not healthy homes compliant and intentionally took no steps to remedy that. C.Exemplary Damages for s45(1) Breaches
I have found that the landlord has intentionally breached his section 45(1)(b) and (bb of the RTA obligations to the tenants and in doing so has left them living an a damp, mouldy environment for the duration of their tenancy and has negatively impacted on their amenity of the premise and caused them stress and inconvenience.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. The landlord knew of the need to maintain the lawns, repair the rotten floorboards and address the moisture ingress issues with the property and he did not. The landlord also did not do enough to identify and successfully repair the health homes non-compliance issues in a timely manner; b. The tenants suffered the stress and inconvenience associated with living with the long lawns, rotten floorboards, mould and dampness related issues, such as rotten floorboards and mouldy ceilings, and being put through the stress of having to repeatedly follow the landlord up and remind him of his obligations under the RTA ; c. It is in the interests of the tenants to receive exemplary damages for the stress, inconvenience and loss of amenity they suffered as a result of the s45(1)(b) and (bb) breaches; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance and healthy homes obligations.
I make an order for the landlord to pay $3,600.00 in exemplary damages for its breach of s48(2) (d) of the RTA. Accordingly (being 50% of the maximum penalty available in recognition of the number of breaches, the length of time the breaches continued and the impact on the tenants- one of whom was pregnant during the tenancy). Breach of quiet enjoyment
Gunther Fester and Shoulyn Singh claims the landlord has breached their quiet enjoyment of the premise, and in doing so harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants say: a. A contractor came to the premise on 26/2/24 at 7am to start doing major works to the driveway when the tenant’s wife was 12 weeks pregnant and trying to rest and keep her stress levels to a minimum. These works consisted of noisy drilling and digging up the concrete on the driveway right out the front of the tenants’ home. The noise was unbearable for the tenants. In addition, the contractors requested that they be allowed to turn off the tenants power for the time they were undertaking the works; b. The landlord had told the tenants the day before that there were some urgent driveway repairs required and the tenants indicated that it was not convenient for them to have contractors there that day and asked the landlord to reschedule the work to a time when the tenants could make arrangements to store his work vehicle off the road for the period it would take to complete the work on the driveway and to make arrangements for his wife to stay elsewhere while the noisy work was undertaken; c. The landlord sent the contractor to the house the next day, despite the tenants’ protest that his van was full of tool and building equipment and was not covered by insurance if not parked off the road and that his wife was trying to rest and relax; d. The tenants refused the contractor access to continue ripping up the driveway and the contractor called the landlord. The tenant heard the landlord instructed the contractor to continue the work; e. The tenant was informed by the contractor, and by a person from Chorus seeking to install another line, that the works were not to repair the driveway but to install new services for a subdivision. Once the tenant was aware of the nature and extent of the work to the driveway, he asked the landlord to delay the work until the tenancy ended on 24 March 2024
The landlord confirmed he had arranged a contractor to dig up the driveway to allow new services to be connected for a new subdivision and that the driveway had been ripped up somewhat before the tenant had stopped the contractors continuing. He denied instructing the contractors to continue when the tenant had asked them to cease the noisy drilling because it was causing the tenant’s wife distress and would invalidate his insurance if he could not use the driveway to store his work van off the road overnight.
The tenants were subject to a period of loud noise and the loss of amenity of their driveway from 26 February 2024 to 24 March 2024.
I award the tenants $115.71 compensation for the loss of amenity of their driveway access and the noise they suffered at $30.00 per week for the 3 weeks and 6 day period.
I also find that the landlord was made aware of the tenant’s wife’s needs to be able to rest and not be stressed in that critical period of her pregnancy and do not find his request for this work to be delayed to 24 March 2024, the tenancy end date. The work was not urgent driveway repairs. The landlord deliberately misled the tenants to try to get them to agree to work that was going to be lengthier and noisier than they were told by the landlord. The landlord intentionally ignored the tenants request to have their peace and quiet enjoyment of the property preserved until the end of their tenancy (which was already imminent).
I find the landlord has intentionally breached the tenants’ privacy and quiet enjoyment in doing so has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied it would be just to require the landlord to pay a sum of exemplary damages because: a. The landlord knew the tenants had requested their peace and quiet enjoyment of the premise be preserved for another month until the tenancy ended in order to preserve the wife’s early pregnancy and to ensure the male tenant could continue to access off street parking for his work van, which he required for the insurance of the tools and equipment in it ; b. The tenants felt harassed and that the landlord was disrespectful of their desire for peace, privacy and quiet enjoyment of the property they were paying rent for in the final few weeks of a fraught tenancy; c. it is in the interests of the tenants to receive exemplary damages for the breach of privacy caused; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to allow tenants to have quiet enjoyment of their home and privacy.
I make an order for the landlord to pay $500.00 in exemplary damages for its breach of s48(2) (d) of the RTA. accordingly. This award is 16.5% of the maximum penalty available and this quantum recognises the one off nature of the breach but the seriousness of the potential consequences of the breach to the tenants unborn child and to the tenants livelihood. Retaliatory notice
On 7 December 2023, the landlord gave the tenants a 90-days notice ending the tenancy on 6 March 2024. The tenants claims the notice is retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
The tenants had a fixed term tenancy agreement that was due to end on 29 March 2024. The landlord was not legally entitled to end the tenancy during the fixed term. The tenants say he did so on the 7 December 2023 in retaliation for the tenants raising a number of repair and maintenance issues, including the serious lack of access to water issue that was the subject of the Tribunal’s 20 March 2024 Order (that was never resolved).
I am satisfied based on the evidence provided to me by the tenants that on the balance of probabilities, the landlord issued an unlawful notice, ending the tenancy before the ned of the fixed term, because he was motivated partly by the tenant exercising his rights under the tenancy agreement and the RTA to have the repairs, maintenance and healthy homes issues remedied in a reasonable timeframe.
I find the landlord has committed an unlawful act.
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986.
I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. The landlord knew he was not legally able to end the tenancy during the fixed term but did it on the same day the tenant had raised numerous repair and maintenance issues during the property inspection; b. The tenants suffered the stress and inconvenience associated with having their tenancy ended abruptly in retaliation for trying to exercise their tenant rights and having to find a new place to live as a result when the tenant’s wife was in the early stages of her pregnancy and trying to avoid unnecessary stress ; c. It is in the interests of the tenants to receive exemplary damages for the stress and inconvenience they suffered because of the retaliatory notice ending their tenancy; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their notice ending a tenancy obligations.
I award the tenants $3,250.00 in exemplary damages for this breach, which is half of the $6,500.00 quantum available for this type of breach. I find this apportionment fair because of the nature of the breach and its impact on the tenants. Unlawful notice
Gunther Fester and Shoulyn Singh claims that the landlord has also breached his obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
The landlord gave the tenants 90 days notice, on 7 December 2023, ending their tenancy on 6 March 2024. The reasons given for ending the tenancy was the landlord’s family from India was coming to live in New Zealand and he needed the premise for them to live in as their primary place of residence, within 90 days of the end of the tenancy.
On 20 March 2024, the landlord then asked the tenants if they would like to extend their tenancy and the tenants have proof that the landlord is subdividing the property and his family did not come to reside in the premise within 90 days of 6 March 2024.
This notice is unlawful for the following reasons: a. A fixed term tenancy cannot be lawfully ended before its expiry date, being 29 March 2024, unless by the mutual agreement of the parties. The parties did not reach any such agreement prior to the tenants being issued notice ending the tenancy; b. The landlord gave a false reason for the termination of the tenancy. It appears there was never any intention for his family to reside in the premise while the property was being subdivided.
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act. He has knowingly ended the tenancy unlawfully and has deliberately misled the tenants about his reasons for ending the tenancy early.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. The landlord knew he was not legally able to end the tenancy during the fixed term; b. The tenants suffered the stress and inconvenience associated with having their tenancy ended abruptly in retaliation for trying to exercise their tenant rights and having to find a new place to live as a result when the tenant’s wife was in the early stages of her pregnancy and trying to avoid unnecessary stress ; c. It is in the interests of the tenants to receive exemplary damages for the stress and inconvenience they suffered because of the unlawful notice ending their tenancy; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to give lawful notice to tenants ending a tenancy.
I award the tenants $3,250.00 in exemplary damages for this breach, which is half of the $6,500.00 quantum available for this type of breach. I find this apportionment fair because although the tenancy was blatantly unlawfully ended by the landlord and caused the tenants inconvenience, stress and the costs associated with having to move, I have already awarded exemplary damages under the retaliatory notice head of claim. Had I not awarded exemplary damages for the retaliatory aspect of the notice, I would have awarded the tenants the maximum penalty available for a s60AA breach. Failure to keep accurate business records
Gunther Fester and Shoulyn Singh claims the landlord has not kept records of rent and bond paid.
The landlord was unable to produce any rent records to the Tribunal to justify his claim over the tenants’ bond for alleged rent arrears. The tenants also produced evidence that they had been trying to reach agreement with the landlord at the end of the tenancy what the rent arrears were. The landlord claimed the arrears were higher than what the tenants thought they should be. Because of the lack of accurate rent records, the tenant and to go through all of his bank statements to prove the amount of rent arrears actually owing. Based on the tenants bank records, the parties were able to agree to the rent arrears I have awarded by consent of the parties.
A landlord must keep proper business records showing details of all rent payments and any bond paid by the tenant. See section 30(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. See section 30(2) and Schedule 1A RTA).
Proper business records mean records that are orderly, to a high standard 3 , and contemporaneous with payments made by the tenants 4 .
It was clear to me from the text messages provided by the tenants, that the landlord’s business records associated with the tenancy were only his bank records and that he did not keep proper accurate business records and could not provide a rent summary to the tenants or the Tribunal in the required format.
I find the landlord has failed to keep accurate business records that are of a high standard, in accordance with s30 of the RTA, and he has committed an unlawful act. 3 Kumar v Capper NZTT Auckland TT1004/90, 12 March 1991 at [8]. 4 Brown v Steele [2002] DCR 338 at [19].
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I find the landlord intentionally failed to retain accurate business records to a high standard and that it would be just to require the landlord to pay a sum of $350.00 in exemplary damages because: a. The landlord should have reasonably known that it is required by law to keep accurate business records that allows it to provide the tenants with accurate rent summaries in a reasonable timeframe, and it did not. b. The tenants are entitled to rely on accurate business records being kept by their landlord for 7 years so that they can be assured their rent payments are being accounted for accurately and they can seek confirmation of how much rent they owe or have overpaid at any given time; c. t is in the interests of the tenants to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations keep accurate business records of a high standard for the protection of both parties’ interests. Failure to provide information in the tenancy agreement, in breach of s13A of the

RTA

The tenants’ claim that the landlord has breached her obligations under section 13A(1CA) of the Residential Tenancies Act 1986.
Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the five healthy homes standards or why the premises are subject to any lawful exemptions. These five standards relate to heating, insulation, ventilation, moisture ingress and drainage and draught stopping.
The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
Section 13A(2) of the RTA also requires the landlord to provide in the tenancy agreement specified information about insurance of the premises.
Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenants written tenancy agreement does not contain the required healthy homes statements and information required under s13A of the RTA, nor does it contain the required insurance information. As such, the tenants had no idea when they took on the tenancy, whether the premises were fully healthy homes compliant, whether any exemptions apply to the premises or if the premise was insured and how much the insurance excess was. In addition, the tenants asked the landlord for the healthy homes information during the tenancy and questioned whether the premise was compliant. When they did so, instead of being provided with this information, their tenancy was unlawfully ended.
I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, pursuant to section 13A(1F)(a) of the RTA, the Tribunal may award up to a maximum of $750.00 in exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied the landlord failed to provide the tenants with the required completed and signed healthy homes statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA and the insurance information required under s13A(2) of the RTA.
I find the landlord intentionally breached 13A(1CA)(b) and 13A(2) of the RTA and that it would be just to require the landlord to pay a sum of $750.00 in exemplary damages because: a. The landlord should have reasonably known that he is required by to provide the tenants with healthy homes and insurance information with a written tenancy agreement b. The tenants are entitled to rely on their statutory right to receive information about whether the premise was healthy homes compliant and if it wasn’t, was it exempt from these requirements. The tenants are also entitled to have access to the required insurance information and to understand what risks are covered by that insurance and what the excess is; c. It is in the interests of the tenants to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations ensure the tenants have healthy homes compliance and insurance information given to them prior to the commencement of the tenancy so they can make an informed decision whether or not to rent a non-compliant or uninsured premise.
I find that 100 percent of the maximum available exemplary damage quantum of $750.00 is appropriate given the tenants have proven the premise was not fully healthy homes compliant and they were denied the opportunity to forgo this rental offered to them because it did not meet the healthy homes standards.
I also note that the landlord has written into the tenancy agreement that he has the right to renew the fixed term tenancy at his sole discretion. This is an unlawful condition. Landlords cannot add conditions that are inconsistent with the RTA or that go beyond what the RTA requires of tenants. Any conditions that are inconsistent with the law will have no effect. A landlord cannot enforce what is outside the law, and tenants cannot sign away any of their RTA rights. This additional breach of the RTA is a further demonstration of the landlord’s disregard for the law. Other miscellaneous claims
The tenants say the cost of the power used in the garage was processed for payment through their power meter. The landlord accepts this.
The tenancy agreement is silent about whether the garage was included in the tenancy.
The tenants say that not long after their tenancy started the landlord gave them permission to use the garage. The landlord confirmed that initially he was going to retain sole use of the garage for storage, but once he found he did not need it for storage he gave permission to the tenants to use it.
The tenants say that one month into the tenancy, the other unit on the premise was let to a different tenant and she asked to store some of her belongings in the garage. The tenants says the landlord agreed that she could use the garage to store some of her belongings and asked the tenants to provide her with the remote control required to access it. They say she never gave the remote control back to them and as such they had no access to the garage. In addition, the tenants says the became aware the tenant for the other unit was using the power source in the garage to charge her electric car on a regular basis, at their expense. They say they raised their concerns with the landlord and the landlord told them to sort the usage of the garage and the power issue out with the other unit’s tenant.
The tenants say the other units tenant did not give them back the garage remote and continued to charge her car at their expense and the landlord refused to sort the issues out.
The landlord confirmed he did not intervene and stated he had expected the tenants to sort these issues out themselves and did not consider it his job to intervene. He stated that he had given permission for both tenancies to have half of the garage each to store their belongings.
Because the landlord did not intervene, the tenants were unable to use the garage, as they had no access, and they were made to pay the costs of the other unit’s tenants car charging costs.
In addition, the tenants say they were supposed to share the washing machine with the other unit’s tenants and the other unit’s tenant stopped them accessing this facility, leaving them without a way to wash their clothes as there were known issues with the water supply to the tenants’ premise that meant there was insufficient water pressure to run a washer, dishwasher and other such appliances.
Further, the tenants stated, and the landlord confirmed that the tenants premise had the hot water cylinder for the two separate households, and as such they were paying for the other unit’s tenants hot water usage.
I am satisfied the tenants suffered a loss of amenity by losing the use of half the garage and the washing machine and that they were also paying the electricity for the other unit’s tenant’s hot water and electric car charging.
The tenants say their power bills were, on average, $260.00 per month. Given that they were unable to shower and use the dishwasher and laundry facilities in their own flat, the tenants could not have been using more than 50% of the power consumption they were being charged for. I find it appropriate to award a rent rebate to the tenants of $90.00 per month for the period 1 August 2023 to 24 March 2024 (7 months and three weeks), being a total reimbursement of $697.50. Reimbursement of filing fee
Section 102(4) of the RTA confirms that if an applicant has been wholly successful in his or her claim, the Tribunal must order that the respondent pay the applicant the filing fee paid for the application.
Because Gunther Fester, Shoulyn Singh has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4847942 — Exemplary damages at 28 Coburg Street, Henderson, Auckland 0612

At a glance

Tenancy Tribunal case 4847942 — Exemplary damages at 28 Coburg Street, Henderson, Auckland 0612

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent and water rates?

Did the tenant comply with their obligations at the end of the tenancy?

RTA

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent and water rates?

Did the tenant comply with their obligations at the end of the tenancy?

RTA

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions