What was the outcome of Tenancy Tribunal case 4972394?

The tribunal order states: Charles MacCulloch and Jin MacCulloch must pay Cheryl Ann Montgomery

How much money was awarded in case 4972394?

Compensation: Rent paid in excess ma…: $546.43 awarded to tenant

What type of tenancy dispute was case 4972394?

The dispute type was not classified.

Where can I read the official tribunal order for case 4972394?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11806981-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4972394?

The tribunal order states: Charles MacCulloch and Jin MacCulloch must pay Cheryl Ann Montgomery

How much money was awarded in case 4972394?

Compensation: Rent paid in excess ma…: $546.43 awarded to tenant

What type of tenancy dispute was case 4972394?

The dispute type was not classified.

Where can I read the official tribunal order for case 4972394?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11806981-Tribunal_Order.pdf.

232 Lake Road, Hauraki, Auckland 0622 Tenancy Tribunal Case 4972394 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4972394 — net $546.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Rent paid in excess market rent	$546.43	Rent paid in excess market rent
Net award	$546.43
Total payable by Landlord to Tenant	$546.43

Claims and awards in Tenancy Tribunal application 4972394 — net $546.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Rent paid in excess market rent	$546.43	Rent paid in excess market rent
Net award	$546.43
Total payable by Landlord to Tenant	$546.43

Order

Charles MacCulloch and Jin MacCulloch must pay Cheryl Ann Montgomery $546.43 immediately, calculated as shown in table below:
The tenant’s claims seeking compensation for loss of amenity of one bedroom and the cost of renting a shed are dismissed.
The tenant’s claims seeking exemplary damages for breaches of Healthy Homes Standards are dismissed.
The tenant’s claims seeking exemplary damages for retaliatory notice and/or breach of quiet enjoyment are dismissed.
By consent, the landlord’s claims seeking compensation and/or exemplary damages are dismissed.

Reasons

Both parties attended the face-to-face hearing on 6 May 2024.
Cheryl Ann Montgomery seeks the following orders: a. Compensation for lack of amenity: the tenant says she had to use a bedroom for storage because the garage was inadequately maintained. The tenant seeks $4,500 compensation; b. Compensation for lack of amenity: the tenant seeks reimbursement of the cost of renting an additional shed at $25 per week. The tenant seeks $1,500 compensation; c. Exemplary damages totalling $2,500 for failure to meet Healthy Home Standards in relation to: i. Draughts; ii. Ground moisture barrier; iii. Ceiling insulation; and iv. Heating. d. Compensation for rent paid in excess of market rent; and e. Exemplary damages for retaliatory notice to terminate given 11 August 2024, and/or, for breach of quiet enjoyment relating to the manner in which the notice of termination was served.
The landlord filed a counterclaim, however, at the hearing on 6 May 2025 the landlord confirmed they no longer wished to pursue their counter-claim.
Accordingly, by consent, I dismiss the landlord’s counterclaim seeking compensation and/or exemplary damages. Burden and standard of proof
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.
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 fraction 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
In the tenant’s claim, 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 damages and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the 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 RTA. Compensation for lack of amenity/failure to maintain garage
Cheryl Ann Montgomery claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. The tenant says the landlord did not provide and maintain the garage in a reasonable state of repair, and as a result, the tenant had to use one of the premises’ three bedrooms for storage. The tenant says lack of amenity in terms of use of the third bedroom is equal to $60 per week rent reduction, and seeks reimbursement of that amount for the entire tenancy, being 75 weeks, at a total of $4,500.
The tenant further says that the poor condition of the garage meant she was required to hire a storage shed which sat on the premises. The tenant rented the shed at a cost of $25 per week from July 2023 to October 2024, at a total cost of $1,500. The tenant seeks reimbursement of that amount.
In support of her claim, the tenant produced a video recorded on 22 August 2024. In the video, the tenant walks around the outside of the garage, identifying areas where she says water was pooling, and the inside of the garage, identifying areas she says show mould growth and cracks.
The tenant says shortly after she moved in, in May 2023, she discovered the garage was not fit for purpose, and says she took some steps to attempt to remedy this. She says approximately two weeks after moving in, while shopping for a moisture barrier product at Bunnings, she bumped into the landlord and told him she was buying a moisture barrier for the garage.
The tenant says she initially stored items including household items, children’s rowing uniforms, old school clothing, books and art, a video payer, family photos, and a bed frame in the garage. The tenant did not produce photos, or any other form of evidence, to show any damage to those items the tenants stored in the garage.
The tenant says that she discovered the garage was not watertight approximately one month into the tenancy and moved her belongings out of the garage. She says she later stored some items in the garage which belonged to a friend and were intended for disposal so could be exposed to the dampness.
The tenant produced a bank statement to show she made payments of $25 per week from 21 June 2023 to 2 July 2024 to rent a small shed.
The landlord says the home (including the garage) was built in the 1940s. The landlord purchased the property in June 2020 and says the garage roof was replaced by the previous owner shortly before the landlord took ownership. The landlord says some of the water marks visible inside the garage relate to previous issues which were remedied before he purchased the premises. The landlord accepts a drainpipe on the exterior of the garage had a hole which was growing moss but says any water that came from that hole would not have made its way into the garage.
The landlord says previous tenants have never raised any issue with water in the garage. The landlord says when he inspected the garage on 17 August 2024, at the request of the tenant, he did not see any evidence of water ingress. The conversation was recorded by the tenant and a transcript was produced for the purposes of the hearing.
The landlord says the areas identified by the tenant as mould are not mould and the orange colouring has been there for years.
The landlord says on the occasions he visited the property the tenant was storing items in the garage. The landlord produced photos of items stored during the tenancy. The landlord also says the property came with a large amount of storage inside the three-bedroom house.
The landlord said he did see the tenant at Bunnings shortly after the tenancy commenced, and was aware she was buying some black polythene for the garage, but he says he thought it was for aesthetic reasons. He denies the tenant said it was anything to do with water ingress issues in the garage.
I am not satisfied the tenant has proved the landlord failed to maintain the garage. It follows that I am not satisfied the landlord committed an unlawful act.
The tenant’s video does not show the garage had water ingress issues. While some discolouration is visible on both the exterior paint and interior, that does not prove the cause of the discolouration was water ingress. Similarly, the cracks visible in the concrete floor and/or walls are not uncommon in a garage of that age. Visible cracks do not, of themselves, indicate a water ingress issue.
The tenant has not produced evidence of items stored in the garage that were damaged by water issues. I am not satisfied that the garage was not maintained to a level expected of a garage of its age.
The tenant’s claim for compensation in relation to a failure to maintain the garage are dismissed. Exemplary damages: Breach of Healthy Homes Standards
Cheryl Ann Montgomery 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).
The tenant claims the landlord has failed to comply with the standards for: a. Draught stopping; b. Ground moisture barrier; c. Ceiling insulation; and d. Heating.
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.
In this case, the tenancy commenced on 23 May 2023, therefore, the premises must comply by 20 September 2023, being 120 days since commencement.
Each claim is considered separately below. Draught stopping
Cheryl Ann Montgomery says the landlord failed to comply with the HHS draught stopping standard. The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
Tenancy Services provides some guidelines for how to determine if a draught is unreasonable. The guidelines state: 1 As a rule of thumb, gaps or holes with a width greater than 3mm in or around the walls, ceilings, windows, doors and floors that let air into or out of the home will usually require blocking to prevent unreasonable draughts. This means that if the edge of a New Zealand $2 dollar coin can fit in the gap, then the gap needs to be sealed. 1 Healthy homes standards: Draught stopping, Tenancy Services, TEN 8113 NOV22, p.5.
In this case the tenant has proved that, in August 2024, the front door and French doors had gaps which were more than 3mm.
The tenant produced a video taken on 19 August 2024 in which she conducted “the candle test”, which involved holding a flame up to areas where she detected a draught. The candle flickered when held up to one vertical edge of the front door, and the bottom horizontal edge of the door. It also flickered when held in front of the dishwasher.
The tenant also produced photos in which she held a flexible tape measure against the gaps around the front door and French doors. The tape measure indicates the gaps were more than 3mm. The gaps appear to be between 5 – 10mm at the bottom of the front door and approximately 4mm around the French doors.
The landlord said shortly after the tenant showed him the video taken in August 2024, he attended the property and installed some draught stopping tape to the front door and French doors in the bedroom. The landlord noted air travelled through the keyhole in the front door, but said this is unavoidable. As regards the dishwasher the landlord said he could not discern where air could be coming from, and on the occasion he visited there was no evidence of a draught.
The landlord relied on a Healthy Homes report conducted 22 August 2020, and a subsequent report he commissioned on 26 November 2024. Both reports state the home was free from unreasonable draughts.
I am satisfied the tenant has proved the home did not meet the standards in relation to draught stopping in relation to the front door and French doors. While the reports produced by the landlord state the home was found to be compliant in August 2020 and November 2024, I am satisfied it was not compliant as at August 2024, as demonstrated by the tenant’s photographs measuring the gaps around the front door and French doors.
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.
Considering those factors, I have determined that it would not be just to award exemplary damages. I take into account that when the issue of the draughts was raised by the tenant in August 2024, the landlord addressed the issues. The landlord used adhesive draught stopping tape on the front door and French door, noting that while this assisted with the draught, it made the door more difficult to operate. I am satisfied the unlawful act was not intentional, and was remedied soon after it was raised by the tenant.
I find the landlord did commit an unlawful act in relation to draught stopping but decline to award the tenant exemplary damages on the basis the unlawful act was not committed intentionally. Ground moisture barrier
Cheryl Ann Montgomery says the landlord failed to comply with the HHS moisture ingress and drainage standard.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The tenant says the ground moisture barrier which was installed beneath the majority (but not all) of the home was inadequate in that it did not extend to the edges of the premises and water pooled on top of it. The tenant produced a video which showed the condition of the ground moisture barrier as at approximately 22 August 2024.
The tenant did not obtain an independent report by a third-party.
The landlord says the ground moisture barrier was inspected by a third-party on 26 November 2024 and was found to be compliant with HHS standards. The landlord says the ground moisture barrier was in place when he purchased the property in 2020 and has not been added to or altered during the landlord’s ownership.
The landlord says the ground moisture barrier does not extend under some parts of the house because those parts are on a concrete slab, and/or because the crawl space under parts of the house is too small to be accessible.
In this case I have determined the landlord did not commit an unlawful act. The tenant has not proved it is more likely than not that the ground moisture barrier did not meet the standards required. The tenant did not identify any specific rule or guidelines that is said to have been breached.
I find the landlord has not committed an unlawful act. I dismiss the tenant’s claim for exemplary damages relating to breach of ground moisture barrier standards. Ceiling insulation
Cheryl Ann Montgomery says the landlord failed to comply with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition and must be at least 120mm thick
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3. Auckland in is Zone 1. The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
The tenant says the ceiling insulation certificate states the R-value is 2.2. The tenant says the R-value should be 2.9. The tenant did not produce any evidence in the way of photographs of the ceiling insulation or evidence of its R- value.
The landlord confirmed the ceiling insulation has an R-value of 2.2 but says it was compliant as it was installed before 2020 (when he purchased the premises) and measures at least 120mm thick. The landlord relies on the HHS reports conducted 30 July 2020 and 26 November 2024, both of which recorded the ceiling insulation met the requirements.
The tenant has not proved it is more likely than not that the ceiling insulation did not meet the standards required. Neither party was able to say whether the ceiling insulation was installed before or after 1 July 2016. The landlord confirmed the insulation was at least 120mm thick, and the two reports conducted in 2020 and 2024 indicate it met the standards required.
I find the landlord has not committed an unlawful act. I dismiss the tenant’s claim for exemplary damages relating to breach of ceiling insulation standards. Heating
Cheryl Ann Montgomery says the landlord failed to comply with the HHS heating standard. The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The tenant says she used the on-line calculator above and found the premises requires a heater of 9.6kW capacity. The tenant was unable to provide the measurements used in the on-line calculator but says it was based on adding the floor area of several rooms marked on a floorplan: the living room, dining room, kitchen and foyer. The tenant says there were no closeable doors between those rooms, therefore they should be considered one room.
The tenant further says the gas fire which is listed on the HHS certificate attached to the tenancy agreement as one of two heat sources did not work. The tenant says the only heat source was a heat pump and that was inadequate.
The landlord relies on the HHS certificate attached to the tenancy agreement which recorded the premises requires a heater of 5.1kW capacity in the main living room. The report recorded that there were two heating sources (the gas fire and the heat pump) which each produced 5.7kW and 3.8kW. The report recorded the main living area had a total heating capacity of 9.5kW.
The landlord says the gas fire was working and was tested during the November 2024 assessment. The report from that records the gas fire was working.
The tenant has not proved it is more likely than not that the heating sources available did not meet the standards required. The tenant has not demonstrated that the living area required a heater of 9.6kW capacity.
I find the landlord has not committed an unlawful act. I dismiss the tenant’s claim for exemplary damages relating to breach of heating standards.

Did the rent paid by the tenant exceed the market rent by a substantial amount?

Cheryl Ann Montgomery claims the landlord charged rent in excess of the market rent. The relevant provision of the RTA is section 25: Market rent (1)On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (2)Notwithstanding anything in subsection (1), no application may be made under that subsection in respect of the rent payable under a fixed-term tenancy later than 3 months after— (a)the date of the commencement of the tenancy or (in the case of a tenancy that was subsisting immediately before commencement of this Act) the date of the commencement of this Act; or (b)the date of the last review of rent,— whichever is the later. [...] (3)For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant. (4)An order made under this section shall take effect on and from a date to be specified in the order, which may be the date of the order or any earlier or later date, but being no earlier than the date of the application for the order and no later than 30 days after the date of the order
The periodic tenancy commenced on 28 May 2023 and came to an end on 29 October 2024. By notice issued on 6 May 2024, the rent was increased from $940 per week to $1,030 per week, effective from 6 July 2024.
The tenant filed an application seeking an order as to market rent on 8 September 2024. Accordingly, any order, if made, must comply with s25(4) and may take effect no earlier than 8 September 2024.
Essentially, the tenant’s application is confined to the rent payable between 8 September 2024 and 29 October 2024, a period of 7 weeks and 2 days.
As stated in s54(1), the Tribunal may make an order reducing the rent to an amount in line with market rent if the rent for the tenancy exceeds the market rent by a substantial amount. ‘Market rent’ is the rent that a willing landlord might reasonably expect to receive, and a willing tenant might reasonably expect to pay, taking into consideration the general level of rents for comparable tenancies or comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
The questions I must determine are firstly what a market rate of rent would be for these premises, secondly, whether the rent payable is substantially above the market rate, and if so, thirdly, what the rent should be?
The premises are a 3-bedroom, 2-bathroom, single level free-standing home in Hauraki. The home was built in the 1940s and is situated on a 779m2 section. The property had a garage (two-car capacity when parking in tandem) and off- street parking for 7 cars.
I record at this juncture, that I was not presented with any direct independent valuation in relation to these premises specifically, but the RTA does not require such evidence with market rent claims. What I do have is evidence provided from the Tenancy Services Bond data, and also Trademe and other similar real estate listings.
Tenancy Services operate the Tenancy Bond Centre. As part of its operation, the Bond Centre records data around the rent paid when the bond is lodged, and this information is collated and published. This can be found at https://www.tenancy.govt.nz/rent-bond-and-bills/market-rent.
The bond data is aggregated into suburbs, in this case the relevant suburb is Hauraki, Auckland. The tenant provided with the bond data market rent reports for Takapuna and Hauraki. The Hauraki report was based on 219 bonds lodged with the Bond Centre for 3-bedroom houses in the area between 1 January 2024 and 1 June 2024. From that report, rents were as follows: Lower quartile $791.00 Median$895.00 Upper quartile$950.00
What this means, is that the average rental for the lowest 25% of rents was $791 per week, and for the highest 25% of rents it was $950.00 per week.
The tenant produced screenshots of real estate listings from nearby properties. The tenant referred to 8 listings in particular, five of which she categorised as “comparative” and three of which she categorised as “superior.” The properties were in Hauraki, Takapuna, Belmont, Devonport and Milford. All listings were for 3-bedroom properties, but otherwise varied in size and features. The weekly rent sought for the 8 listings was between $750 and $1,100 per week.
The tenant also produced a copy of the premises’ current listing on Trademe. The premises is now owned by new owners. The listing indicates the premises is currently listed for rent at $890 per week.
In response, the landlord says the rent of $1,030 per week from 6 July 2024 was market rent. The landlord says they were under their own “developing circumstances” in terms of their finances, which influenced their decision to increase the rent. They say the tenant did not object to the increase in rent at the time and paid the additional rent from 6 July 2024.
The landlord produced a screenshot from the website www.homes.co.nz which provides estimated values of property and estimated rents based on publicly available information. The landlord says the rental amount was consistent with the rent estimation on that website which, as at December 2024, estimated the rent for the premises to be between $870 – $1040. The landlord says the property is a high-quality home, hence the upper end of that range is applicable.
The landlord said there were many features of the 8 listings produced by the tenant which were inferior to the premises. The landlord pointed to the premises being on a 779m2, fully fenced, section, with parking for up to 7 cars, and situated less than 400m to Takapuna Grammar School and 500m to Takapuna beach.
Taking into account the evidence produced by both parties, I find the market rent between 8 September 2024 and 29 October 2024 for a three-bedroom home in Hauraki similar to the premises is $955 per week. That is the middle of the range estimated by www.homes.co.nz as at December 2024. I note however that neither that screenshot, nor the Bond Centre data produced by the tenant, was for the time-period I am concerned with (September – October 2024). I take into consideration that the premises is on a larger section than indicated in many of the listings produced by the tenant for comparison, but also note that there was insufficient evidence to show the premises was at the upper end of rental properties available at that time. I accept the middle of the estimated range of rent, as calculated by www.homes.co.nz, is the best indicator of market rent for these premises at that time.
Having determined that the market rent for similar premises was $955 per week, the question then becomes whether the rent charged between 8 September 2024 and 29 October 2024 was rent exceeding the market rent by a substantial amount. In answer to that question I find it was.
The RTA does not define what is meant by a “substantial amount.” In this case, the rent charged by the landlord was 7.85% above market rate. In the recent decision Kalyan v Lee [2024] NZDC 16284 DCJ Gibson found weekly rent charged at a rate that was 7.5% above market rate was considered a “substantial amount,” especially bearing in mind inflation as measured by the C.P.I. 2 His Honour referred to two other Tribunal decisions where rent that was
58% above market rent was found to be a “substantial amount.” 3 2 Kalyan v Lee [2024] NZDC 16284 at [11]. 3 [2024] NZIT 4708889 at 29, and, [2023] NZIT 4476380.
Consistent with those authorities, I find the difference between the rent charged ($1,030) and the market rent ($955), being 7.85% above market rent, was a substantial amount.
I therefore grant the tenant’s claim for compensation for rent paid in excess of market rent for the period 8 September 2024 to 29 October 2024.
That equates to 7 weeks and 2 days, accordingly, I award the tenant $546.43.

Was the notice to terminate retaliatory?

On 11 August 2024, the landlord served the tenant notice to end the tenancy on 29 October 2024 on the basis the landlord intended to sell the premises. The tenant claims the notice was retaliatory in response to the issues the tenant had raised in a letter to the landlord on 10 August 2024.
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 landlord denies issuing the notice of termination in retaliation to the tenant’s letter of 10 August 2024. The landlord says the landlord was experiencing financial difficulties and had decided to sell the premises. The landlord produced copies of email correspondence sent to a local real estate agent on 27 July 2024 stating the landlord wished to sell the premises.
The landlord says the notice to terminate was issued on 11 August 2024 after the landlord became aware that the notice period required to be given was 90 days, and not 42 days as he had previously understood. Upon becoming aware the landlord must give 90 days’ notice, the landlord wished to act quickly to ensure the property could be placed on the market as soon as possible.
The tenant has not proved it is more likely than not that the landlord was motivated wholly or partly by the tenant exercising their rights under the tenancy agreement or RTA. I am satisfied the landlord was motivated to sell the premises for personal financial reasons, as evidenced by communications with real estate agents which pre-dated the tenant’s complaint on 10 August 2024.
I find the landlord has not committed an unlawful act. I dismiss the tenant’s claim for exemplary damages relating to retaliatory notice.

Was the notice to terminate served in circumstances that amount to harassment?

Cheryl Ann Montgomery also claims the manner in which the notice to terminate was served was a form of harassment.
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.
On 11 August 2024, the landlord placed a copy of the notice of termination in the premises’ letterbox. The landlord also knocked on the door. The landlord was holding a copy of the notice in a sealed envelope, and holding a further copy which was folded up and not in an envelope. The landlord knocked on the door at approximately 3pm. Prior to arriving at the premises, at approximately 2:40pm, the landlord had emailed a copy of the notice of termination to the tenant.
The tenant was not home when the landlord knocked on the door, however her 15-year-old daughter answered the door. The landlord gave the tenant’s daughter the sealed envelope and folded copy of the notice.
The tenant says there was a level of aggression in serving the notice in that way. The tenant says it was a cruel way to do it and had ramifications for her daughter.
The landlords says his interaction with the tenant’s daughter was brief, only one or two minutes. He says he handed her the letter(s) and asked her to give them to her mother. The landlord said the daughter replied and said she would. The landlord denies being aggressive or intruding on the tenant’s privacy or quiet enjoyment of the premises.
I find the landlord did not commit an unlawful act. I am satisfied the landlord went to the premises for the purposes of speaking to the tenant to explain the notice of termination. I am satisfied it was done at an appropriate time of day and that the landlord left the premises soon after becoming aware the tenant was not home. I am satisfied the landlord’s interaction with the tenant’s daughter was not aggressive.
I find the landlord has not committed an unlawful act. I dismiss the tenant’s claim for exemplary damages relating to breach of quiet enjoyment. Should the landlord’s identifying details be suppressed?
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name and/or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The Tribunal may also, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
See s 95A of the RTA.
Both parties sought name suppression.
The tenant has not been wholly or substantially succeeded in their claims therefore I dismiss the tenant’s application for name suppression.
The landlord chose not to pursue their counter-claim, therefore the landlord has also not been wholly or substantially successful in their claims. Having regard to the interests of the parties and to the public interest, I do not consider it would be appropriate to suppress the landlord’s name. The claims dealt with in this case are of an ordinary nature and there is nothing to warrant a departure from the principle of open justice.
I do not make any suppression orders.

Tenancy Tribunal case 4972394 — Tenancy dispute at 232 Lake Road, Hauraki, Auckland 0622

Tenancy Tribunal case 4972394 — Tenancy dispute at 232 Lake Road, Hauraki, Auckland 0622

At a glance

Award balance

Claims & awards

Order

Reasons

Did the rent paid by the tenant exceed the market rent by a substantial amount?

Was the notice to terminate retaliatory?

Was the notice to terminate served in circumstances that amount to harassment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Award balance

Claims & awards

Order

Reasons

Did the rent paid by the tenant exceed the market rent by a substantial amount?

Was the notice to terminate retaliatory?

Was the notice to terminate served in circumstances that amount to harassment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions