What was the outcome of Tenancy Tribunal case 4991010?

The tribunal order states: The application by Lynda Cunningham and Leonard Cunningham for arrears of

How much money was awarded in case 4991010?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4991010?

The primary dispute was Rent arrears. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4991010?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10845916-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4991010?

The tribunal order states: The application by Lynda Cunningham and Leonard Cunningham for arrears of

How much money was awarded in case 4991010?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4991010?

The primary dispute was Rent arrears. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4991010?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10845916-Tenancy_Tribunal_Order.pdf.

7 Hasborough Place, Balclutha, Balclutha 9230 Tenancy Tribunal Case 4991010 — Rent arrears

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7 Hasborough Place, Balclutha, Balclutha 9230 Tenancy Tribunal Case 4991010 — Rent arrears | TenantCheck

Order

The application by Lynda Cunningham and Leonard Cunningham for arrears of $2,662.14, rent in lieu of notice of $1,560.00 and compensation of $1,365.00 is dismissed.
The application by Alana Tunnah for compensation of $10,000.00 and exemplary damages is dismissed.

Reasons

Both parties attended the hearing, the landlord with a representative.
On 23/5/2024 the tenant filed a claim for compensation of $10,000.00 and exemplary damages for breach of sections 38, 45, 48 and 138B.
The landlord cross applied on 1/9/2024 for rent arrears of $2,662.14, rent in lieu of notice of $1,560.00 and compensation of $1,365.00.
The periodic tenancy began on 16/10/2021 and ended on 13/5/2024.
At the end of the tenancy the landlord agreed to the release of the bond of $1,360.00 to the tenant. Tenant’s claim

Did the landlord harass the tenant?

The tenant suggested that the landlord had breached her quiet enjoyment of the premises by continually coming onto the section, without notice and undertaking garden and other work, such as dismantling part of the fence.
In particular the tenant was unhappy that the removal of pallets from the fence meant that the neighbours’ dog could wander onto the property.
The tenant felt the actions of the landlord had “pushed her out of the premises”.
On the other hand, the landlord submitted that the agreement was that the tenant would be responsible for mowing the lawns and the landlord for the rest of the garden.
Further that all the landlord had to do was let the tenant know the day she was coming, which she always did.
The landlord did not believe removing the fence was the reason the neighbour’s dog entered the property.
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.
I am not persuaded by the evidence of the tenant or one of the witnesses that the landlord entered the property without notice or consent and certainly not in circumstances that amounted to harassment.
Few if any issues arose for the first two years of the tenancy with the agreed arrangements about the landlord undertaking work on the property.
The evidence supports that issues only arose when the relationship between the parties deteriorated due to other factors.
I find the landlord has not committed an unlawful act.
The claim fails.

Has the landlord breached their obligations?

Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.
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) and Schedule 1A Residential Tenancies Act 1986.
The tenant suggested that the seals on the oven were broken, and the broken kitchen floorboards took a long time to repair.
Further that the house had not been treated for borer.
In response the landlord suggested that the oven was not brought to their attention until the end of the tenancy, and it was then replaced.
The landlord believed the repairs to the floor were made in a reasonable timeframe, around four weeks, taking into account the difficulties associated with arranging access.
Further the landlord indicated the borer treatment was not brought to their attention.
I am not persuaded by the evidence of the tenant that the landlord failed to maintain the premises in a reasonable state of repair.
The accounts from the electrician support that the oven was maintained over several years and eventually replaced.
There is no other evidence to support when the tenant told the landlord about the oven or indeed if she did mention borer treatment.
The time taken to repair the floorboards I consider is reasonable and accept the landlord’s evidence that there were no health and safety issues involved.
The claim fails.

Has the landlord breached Healthy Homes Standards?

Alana Tunnah 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). Alana Tunnah considers that the landlord has failed to comply with the HHS ventilation standard.
The tenant submitted that the landlord had failed to install an extractor fan in the kitchen.
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 ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
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).
As this tenancy began on 16/10/2021 the obligation then was that the tenancy should have complied within 90 days of the commencement date, which would have been 14 January 2022.
The landlord does not dispute that no extractor fan was installed in the kitchen, albeit she suggested that the tenant had not wanted one.
I find the landlord has committed an unlawful act by failing to install an extractor fan in the kitchen.
The claim is successful.

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenant was unhappy because the landlord had entered the premises on 28/3/2024 to fix the kitchen floor boards when she was not at the property.
On the other hand, the landlord submitted that notice of the date of repairs had been given to and agreed by the tenant and that the tenant’s son had answered the door and allowed the landlord into the house.
The tenant’s son gave evidence that he was not in the premises when the landlord arrived.
Irrespective of the evidence of the witness I do not consider the landlord committed an unlawful act by entering the premises and undertaking the repairs.
Both parties agreed that prior notice was given, and the tenant consented to the date.
Although a tenant may prefer to be at the property when repairs are undertaken there is no requirement in the legislation that a tenant must be at the premises if the necessary notice has been provided.
The claim fails. Landlords’ claim

Does the tenant owe rent arrears?

The tenancy ended on 13/5/2024 and the landlord provided rent records to support the claim of $2,662.14.
In addition, the landlord sought 28 days rent of $1,560.00 in lieu of notice.
The tenant relied on the text message from the landlord of 6/5/2024 stating “i think you may be up $40.00” for her position that she did not owe any arrears.
The landlord submitted that rent records were only reconciled monthly and it was not until the tenant made her application that they became aware of the arrears as they had just let the tenant pay off what she owed.
I am persuaded by the rent records that there were arrears of $2,662.14 owing at the end of the tenancy.
The claim for arrears is successful.
However, the position is different for the claim for 28 days arrears in lieu of notice.
The reason for this is that the landlord failed to give the tenant the appropriate written notice that the premises were to be put on the market for sale or that the tenancy would be terminated.
Rather after uploading a post to Facebook on 8/5/2024 about the sale, the landlord left the giving of notice to the tenant and was then unhappy when the tenant only effectively gave 19 days notice.
Under section 47, a landlord must give written notice to the tenants, immediately if the premises are placed on the market. A landlord must also advise any prospective tenants if the house is on the market.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1800.00 See section 47(3) and Schedule 1A Residential Tenancies Act 1986
Section 51(2) provides the circumstances under which a landlord may terminate a periodic tenancy by giving at least 90 days notice.
This includes under section 51(2)(a) if the premises are put on the market by the owner within 90 days after the termination date for the purposes of sale or disposition.
Both parties have an obligation to provide the appropriate notice, depending on the circumstances.
A landlord cannot rely solely on the tenant to give notice if the premises are to be sold.
The claim for rent in lieu of notice fails.

Did the tenant comply with her 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.
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
The landlord claimed compensation of $1,365.00 as follows: a. $525.00 for cleaning, b. $350.00 for mowing the lawns and replacing plants, c. $240.00 for rubbish removal, d. $250.00 for repairing holes in walls.
In support of the claims the landlord provided photographs of the premises, including the garden and holes in walls and estimates of labour and materials.
On the other hand, the tenant provided photographs taken when she vacated the premises, and four witnesses who gave evidence about the work undertaken prior to vacation.
The landlord has failed to satisfy me that it is more probable than not that the tenant did not leave the premises reasonably clean and tidy, remove all rubbish and repair holes in walls.
While the standard of cleanliness may not have met that of the landlord the evidence in particular of the commercial cleaner was compelling about the cleaning work undertaken.
As was the evidence of the tradesperson painter about filling holes in walls, which the landlord failed to prove was damage as opposed to fair wear and tear.
The claim fails.

Should compensation and or exemplary damages be awarded?

As I have found the landlord committed an unlawful act by failing to comply with Healthy Homes Standards I must consider the issue of exemplary damages.
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.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
An award of exemplary damages is made at the Tribunal’s discretion when one party has proved, as in this case, that the other party has committed a defined unlawful act. In making an award I need to consider the four matters set out in section 109(3).
The first of these is the intent of the landlord.
The District Court has said the requirement of intention is not about whether the party was aware they were breaching the Act. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do, (Parton v Fifita TT 1815/00 DC Auckland, 1/5/2001)
The District Court has generally rejected a landlord pleading confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 where the landlord claimed not to be fully aware of his obligations to supply Healthy Homes Standards documents and insurance details, the Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape the consequences for the unlawful acts involved by claiming ignorance of the law.”
I consider in the circumstances that an inference can be drawn that the landlord intentionally failed to comply with the obligation to provide a fan in the kitchen.
The landlord has rented out premises for ten years and has three other rental properties besides this tenancy.
The rights and obligations of landlords are freely available and accessible through the Tenancy Services website.
It is of significant interest to tenants and the Public that landlords comply with their legal obligations.
The renting of premises is a business. Landlords have obligations under the legislation and need to comply with these.
Tenants have rights under the legislation which landlords should not ignore.
I have carefully considered the evidence provided by both parties, who have both clearly been significantly adversely affected by the dispute between them.
Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest, I consider it would be just to award exemplary damages.
However, I am unable to do that because under section 109(2)(b) a landlord or tenant cannot apply under subsection (1) later than 12 months after the date of commission of the unlawful act.
Put another way the tenant’s claim for exemplary damages cannot succeed because the unlawful act was committed two years and four months before she applied.
The tenant also applied for compensation, albeit for an amount she was unable to explain.
As I am unable to award exemplary damages, I consider it is appropriate in the circumstances to award compensation to the tenant.
Section 85 of the Residential Tenancies Act 1986 provides useful guidance about how the Tribunal should exercise its jurisdiction. This must be in a manner most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises.
In addition, the Tribunal must consider the substantial merits and justice of the case without being bound to give effect to strict legal rights or obligations, or to legal forms and technicalities.
In the interests of a fair and expeditious resolution of the dispute between the parties I consider an award of compensation equivalent to the rent arrears owed by the tenant is reasonable.
This means that neither party owes the other any debt at the end of the tenancy and the bond has been refunded to the tenant.
No filing fee is awarded because both parties were only partially successful, and the filing fees effectively cancel each other out.
Both parties sought suppression under section 95A.
However, because both parties were not wholly or substantially successful, I consider suppression is not available to either of them.

Order

The application by Lynda Cunningham and Leonard Cunningham for arrears of $2,662.14, rent in lieu of notice of $1,560.00 and compensation of $1,365.00 is dismissed.
The application by Alana Tunnah for compensation of $10,000.00 and exemplary damages is dismissed.

Reasons

Both parties attended the hearing, the landlord with a representative.
On 23/5/2024 the tenant filed a claim for compensation of $10,000.00 and exemplary damages for breach of sections 38, 45, 48 and 138B.
The landlord cross applied on 1/9/2024 for rent arrears of $2,662.14, rent in lieu of notice of $1,560.00 and compensation of $1,365.00.
The periodic tenancy began on 16/10/2021 and ended on 13/5/2024.
At the end of the tenancy the landlord agreed to the release of the bond of $1,360.00 to the tenant. Tenant’s claim

Did the landlord harass the tenant?

The tenant suggested that the landlord had breached her quiet enjoyment of the premises by continually coming onto the section, without notice and undertaking garden and other work, such as dismantling part of the fence.
In particular the tenant was unhappy that the removal of pallets from the fence meant that the neighbours’ dog could wander onto the property.
The tenant felt the actions of the landlord had “pushed her out of the premises”.
On the other hand, the landlord submitted that the agreement was that the tenant would be responsible for mowing the lawns and the landlord for the rest of the garden.
Further that all the landlord had to do was let the tenant know the day she was coming, which she always did.
The landlord did not believe removing the fence was the reason the neighbour’s dog entered the property.
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.
I am not persuaded by the evidence of the tenant or one of the witnesses that the landlord entered the property without notice or consent and certainly not in circumstances that amounted to harassment.
Few if any issues arose for the first two years of the tenancy with the agreed arrangements about the landlord undertaking work on the property.
The evidence supports that issues only arose when the relationship between the parties deteriorated due to other factors.
I find the landlord has not committed an unlawful act.
The claim fails.

Has the landlord breached their obligations?

Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.
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) and Schedule 1A Residential Tenancies Act 1986.
The tenant suggested that the seals on the oven were broken, and the broken kitchen floorboards took a long time to repair.
Further that the house had not been treated for borer.
In response the landlord suggested that the oven was not brought to their attention until the end of the tenancy, and it was then replaced.
The landlord believed the repairs to the floor were made in a reasonable timeframe, around four weeks, taking into account the difficulties associated with arranging access.
Further the landlord indicated the borer treatment was not brought to their attention.
I am not persuaded by the evidence of the tenant that the landlord failed to maintain the premises in a reasonable state of repair.
The accounts from the electrician support that the oven was maintained over several years and eventually replaced.
There is no other evidence to support when the tenant told the landlord about the oven or indeed if she did mention borer treatment.
The time taken to repair the floorboards I consider is reasonable and accept the landlord’s evidence that there were no health and safety issues involved.
The claim fails.

Has the landlord breached Healthy Homes Standards?

Alana Tunnah 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). Alana Tunnah considers that the landlord has failed to comply with the HHS ventilation standard.
The tenant submitted that the landlord had failed to install an extractor fan in the kitchen.
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 ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
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).
As this tenancy began on 16/10/2021 the obligation then was that the tenancy should have complied within 90 days of the commencement date, which would have been 14 January 2022.
The landlord does not dispute that no extractor fan was installed in the kitchen, albeit she suggested that the tenant had not wanted one.
I find the landlord has committed an unlawful act by failing to install an extractor fan in the kitchen.
The claim is successful.

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenant was unhappy because the landlord had entered the premises on 28/3/2024 to fix the kitchen floor boards when she was not at the property.
On the other hand, the landlord submitted that notice of the date of repairs had been given to and agreed by the tenant and that the tenant’s son had answered the door and allowed the landlord into the house.
The tenant’s son gave evidence that he was not in the premises when the landlord arrived.
Irrespective of the evidence of the witness I do not consider the landlord committed an unlawful act by entering the premises and undertaking the repairs.
Both parties agreed that prior notice was given, and the tenant consented to the date.
Although a tenant may prefer to be at the property when repairs are undertaken there is no requirement in the legislation that a tenant must be at the premises if the necessary notice has been provided.
The claim fails. Landlords’ claim

Does the tenant owe rent arrears?

The tenancy ended on 13/5/2024 and the landlord provided rent records to support the claim of $2,662.14.
In addition, the landlord sought 28 days rent of $1,560.00 in lieu of notice.
The tenant relied on the text message from the landlord of 6/5/2024 stating “i think you may be up $40.00” for her position that she did not owe any arrears.
The landlord submitted that rent records were only reconciled monthly and it was not until the tenant made her application that they became aware of the arrears as they had just let the tenant pay off what she owed.
I am persuaded by the rent records that there were arrears of $2,662.14 owing at the end of the tenancy.
The claim for arrears is successful.
However, the position is different for the claim for 28 days arrears in lieu of notice.
The reason for this is that the landlord failed to give the tenant the appropriate written notice that the premises were to be put on the market for sale or that the tenancy would be terminated.
Rather after uploading a post to Facebook on 8/5/2024 about the sale, the landlord left the giving of notice to the tenant and was then unhappy when the tenant only effectively gave 19 days notice.
Under section 47, a landlord must give written notice to the tenants, immediately if the premises are placed on the market. A landlord must also advise any prospective tenants if the house is on the market.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1800.00 See section 47(3) and Schedule 1A Residential Tenancies Act 1986
Section 51(2) provides the circumstances under which a landlord may terminate a periodic tenancy by giving at least 90 days notice.
This includes under section 51(2)(a) if the premises are put on the market by the owner within 90 days after the termination date for the purposes of sale or disposition.
Both parties have an obligation to provide the appropriate notice, depending on the circumstances.
A landlord cannot rely solely on the tenant to give notice if the premises are to be sold.
The claim for rent in lieu of notice fails.

Did the tenant comply with her 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.
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
The landlord claimed compensation of $1,365.00 as follows: a. $525.00 for cleaning, b. $350.00 for mowing the lawns and replacing plants, c. $240.00 for rubbish removal, d. $250.00 for repairing holes in walls.
In support of the claims the landlord provided photographs of the premises, including the garden and holes in walls and estimates of labour and materials.
On the other hand, the tenant provided photographs taken when she vacated the premises, and four witnesses who gave evidence about the work undertaken prior to vacation.
The landlord has failed to satisfy me that it is more probable than not that the tenant did not leave the premises reasonably clean and tidy, remove all rubbish and repair holes in walls.
While the standard of cleanliness may not have met that of the landlord the evidence in particular of the commercial cleaner was compelling about the cleaning work undertaken.
As was the evidence of the tradesperson painter about filling holes in walls, which the landlord failed to prove was damage as opposed to fair wear and tear.
The claim fails.

Should compensation and or exemplary damages be awarded?

As I have found the landlord committed an unlawful act by failing to comply with Healthy Homes Standards I must consider the issue of exemplary damages.
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.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
An award of exemplary damages is made at the Tribunal’s discretion when one party has proved, as in this case, that the other party has committed a defined unlawful act. In making an award I need to consider the four matters set out in section 109(3).
The first of these is the intent of the landlord.
The District Court has said the requirement of intention is not about whether the party was aware they were breaching the Act. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do, (Parton v Fifita TT 1815/00 DC Auckland, 1/5/2001)
The District Court has generally rejected a landlord pleading confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 where the landlord claimed not to be fully aware of his obligations to supply Healthy Homes Standards documents and insurance details, the Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape the consequences for the unlawful acts involved by claiming ignorance of the law.”
I consider in the circumstances that an inference can be drawn that the landlord intentionally failed to comply with the obligation to provide a fan in the kitchen.
The landlord has rented out premises for ten years and has three other rental properties besides this tenancy.
The rights and obligations of landlords are freely available and accessible through the Tenancy Services website.
It is of significant interest to tenants and the Public that landlords comply with their legal obligations.
The renting of premises is a business. Landlords have obligations under the legislation and need to comply with these.
Tenants have rights under the legislation which landlords should not ignore.
I have carefully considered the evidence provided by both parties, who have both clearly been significantly adversely affected by the dispute between them.
Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest, I consider it would be just to award exemplary damages.
However, I am unable to do that because under section 109(2)(b) a landlord or tenant cannot apply under subsection (1) later than 12 months after the date of commission of the unlawful act.
Put another way the tenant’s claim for exemplary damages cannot succeed because the unlawful act was committed two years and four months before she applied.
The tenant also applied for compensation, albeit for an amount she was unable to explain.
As I am unable to award exemplary damages, I consider it is appropriate in the circumstances to award compensation to the tenant.
Section 85 of the Residential Tenancies Act 1986 provides useful guidance about how the Tribunal should exercise its jurisdiction. This must be in a manner most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises.
In addition, the Tribunal must consider the substantial merits and justice of the case without being bound to give effect to strict legal rights or obligations, or to legal forms and technicalities.
In the interests of a fair and expeditious resolution of the dispute between the parties I consider an award of compensation equivalent to the rent arrears owed by the tenant is reasonable.
This means that neither party owes the other any debt at the end of the tenancy and the bond has been refunded to the tenant.
No filing fee is awarded because both parties were only partially successful, and the filing fees effectively cancel each other out.
Both parties sought suppression under section 95A.
However, because both parties were not wholly or substantially successful, I consider suppression is not available to either of them.

Tenancy Tribunal case 4991010 — Rent arrears at 7 Hasborough Place, Balclutha, Balclutha 9230

Tenancy Tribunal case 4991010 — Rent arrears at 7 Hasborough Place, Balclutha, Balclutha 9230

Order

Reasons

Did the landlord harass the tenant?

Has the landlord breached their obligations?

Has the landlord breached Healthy Homes Standards?

Does the tenant owe rent arrears?

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

Should compensation and or exemplary damages be awarded?

Order

Reasons

Did the landlord harass the tenant?

Has the landlord breached their obligations?

Has the landlord breached Healthy Homes Standards?

Does the tenant owe rent arrears?

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

Should compensation and or exemplary damages be awarded?

Order

Reasons

Did the landlord harass the tenant?

Has the landlord breached their obligations?

Has the landlord breached Healthy Homes Standards?

Did the landlord enter the premises without consent or notice?

Does the tenant owe rent arrears?

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

Should compensation and or exemplary damages be awarded?

Order

Reasons

Did the landlord harass the tenant?

Has the landlord breached their obligations?

Has the landlord breached Healthy Homes Standards?

Did the landlord enter the premises without consent or notice?

Does the tenant owe rent arrears?

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

Should compensation and or exemplary damages be awarded?