What was the outcome of Tenancy Tribunal case 5011753?

The tribunal order states: The landlord must carry out the following work to the premises, which must be

How much money was awarded in case 5011753?

Ace Rotten Portions Of The Handrail…: $800.00 awarded to landlord

What type of tenancy dispute was case 5011753?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5011753?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11203795-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5011753?

The tribunal order states: The landlord must carry out the following work to the premises, which must be

How much money was awarded in case 5011753?

Ace Rotten Portions Of The Handrail…: $800.00 awarded to landlord

What type of tenancy dispute was case 5011753?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5011753?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11203795-Tribunal_Order.pdf.

12 Danube Lane, Glen Eden, Auckland 0602 Tenancy Tribunal Case 5011753 — Healthy homes

Claims and awards in Tenancy Tribunal application 5011753. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
ace rotten portions of the handrail on the front deck. 2. As an alternative to compliance with Order 1, the landlord mus	$800.00		ace rotten portions of the handrail on the front deck. 2. As an alternative to compliance with Order 1, the landlord mus

Claims and awards in Tenancy Tribunal application 5011753. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
ace rotten portions of the handrail on the front deck. 2. As an alternative to compliance with Order 1, the landlord mus	$800.00		ace rotten portions of the handrail on the front deck. 2. As an alternative to compliance with Order 1, the landlord mus

Order

The landlord must carry out the following work to the premises, which must be completed by 17 January 2025: a. Repair or replace the front door to ensure the latch is working and it is watertight and without a draught. b. Repair or replace rotten portions of the handrail on the front deck.
As an alternative to compliance with Order 1, the landlord must pay the tenant $800.00 by 17 January 2025.
The tenant’s remaining claims for work orders in relation to the east fence, west fence and clothesline are dismissed.
The tenant’s claims for exemplary damages for failure to provide Healthy Homes information and failure to maintain (in relation to draughts) are both dismissed.
The tenant’s claim that the landlord’s notice to terminate the tenancy be declared retaliatory is dismissed.

Reasons

Both parties attended the hearing. Both the landlord and the property manager attended. The landlord called one witness, Mr Glen Folau, a contractor who carried out or supervised work on the premises. The tenancy
The premises is a three-bedroom, one-bathroom stand-alone home. It was built in the 1990s. The landlord has owned it since 2014 and has always rented it out.
The tenancy commenced on 8 February 2023. Mr Logan is the sole tenant named on the tenancy agreement, however, Mr Logan’s niece and her family occupy the premises. Mr Logan does not live at the property.
The landlord confirmed he was aware prior to the parties entering into the tenancy agreement that Mr Logan’s niece would be living at the property. Essentially, there was agreement between the parties that Mr Logan could sublet the premises to his niece. Should exemplary damages be awarded to the tenant for failure to supply Healthy

Home information on request?

Stephen Andrew Logan claims that the landlord has breached their obligations under section 66 of the Residential Tenancies Act 1986.
Under section 66, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
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 $750.00. See section 66(I)(7) and Schedule 1A Residential Tenancies Act 1986.
The tenant provided evidence that on 28 August 2023, the tenant emailed the property manager, Ms Ye, and requested a copy of the premises’ healthy homes report. The tenant says they made subsequent verbal requests but did not receive the Healthy Home Assessment Report dated 21 September 2022 (the Healthy Homes Report) until 7 September 2024.
Ms Ye says she did not see the tenant’s email sent to her on 28 August 2023, and only discovered it in her junk mail inbox after 6 September 2024. When the tenant raised the request on 6 or 7 September 2024, in response to the landlord’s notice to terminate the tenancy, Ms Ye says she provided the tenant with a copy of the Healthy Homes Report. Ms Ye denies that the tenant made verbal requests for the Healthy Homes report between 28 August 2023 and 6 or 7 September 2024.
It is not in dispute that the Healthy Homes report was not supplied to the tenant until 7 September 2024. I am satisfied the tenant has proven, to the civil standard, that a copy of that information was requested on 28 August 2023. The email sent on that date was clear in its request and was sent to Ms Ye’s email address. The landlord did not supply the requested records within 21 days after receiving the request and I therefore find they 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 interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
In the District Court decision of Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first been served on the tenant.
Judge Neave in the District Court agreed with an earlier summary of the law from the Tribunal 1 that: Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages.
In this case, there is no evidence that the landlord intentionally committed the unlawful act. The evidence of Ms Ye was that she did not see the email of 28 August 2023. She stated that when the information was requested (again) on 6 September 2024, she supplied the healthy homes information on 7 September 2024.
I find Ms Ye did not deliberately withhold the Healthy Homes Report. The Healthy Homes Report stated that the premises was compliant with the Healthy 1 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92 Homes Standards, at least as at 21 September 2022. Therefore, there is no apparent motive for Ms Ye with-holding it. There was also no evidence produced by the tenant to demonstrate that Ms Ye had any other motive to deliberately withhold the Healthy Homes Report.
Having found the landlord committed an unlawful act, but that the landlord did not do so intentionally, I find it is not just to order exemplary damages. Exemplary damages: did the landlord fail to comply with Healthy Home Standards?
Stephen Andrew Logan 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). Stephen Andrew Logan considers that the landlord has failed to comply with the HHS draught stopping standard.
Compliance dates for the HHS vary depending on the tenancy. For this matter, given it is a private rental that commenced on 8 February 2023, the premises must comply by 8 June 2023, being within 120 days of the commencement of the tenancy.
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).
In this case I have determined that the front door had gaps along the base of the door which allowed draughts to enter the home.
The tenant issued a 14-day notice to remedy the front door (and other matters on 6 September 2024. On receipt of that notice, the landlord engaged a contractor, Mr Folau to attend to the matters raised by the tenant.
Mr Folau gave evidence that he attended the property on two occasions, the first on or about 20 September 2024 and the second on a date unknown in November 2024. On the first occasion, he observed the door frame had become twisted and stated there was a possibility air was coming through. His employees or contractors attempted to fix the issue by ensuring the door was secured to the door frame and putting it back into alignment.
On the second occasion in November 2024, Mr Folau says Mr Logan pointed out to him where there was still a gap at the bottom of the door frame. Mr Folau said he could see a gap: at some points he estimated the gap was approximately 3mm wide, which he considered may be an acceptable gap, but up to 10mm wide at other portions, which he indicated would not be acceptable.
I am satisfied Mr Folau’s evidence demonstrates the front door had gaps around the bottom which allowed a draught to enter the home. It follows that I find Mengye Investments Limited Nancy Ye, Hollis Yang and Zheng FENG committed an unlawful act.
As stated above, it is only where a party has committed an unlawful act intentionally that the Tribunal may award exemplary damages. The Tribunal must consider whether 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 refer to the case Peter Stoekeken v Nykala Toheriri and Vince Aso [2022] NZDC 9698, a decision from Judge Tuohy. The dispute in that case included a claim for exemplary damages because the landlord had rented the premises with an exposed electrical wire. Judge Tuohy accepted that the landlord did not know the wire was exposed and confirmed that: ...S 109(3) of the Act requires the Tribunal to be satisfied that the unlawful act was committed intentionally by the person who committed it before exemplary damages can be awarded.... ...assuming that the landlord is liable for the omissions of his agents as well as his own, I am not satisfied that he or his agents intentionally decided not to carry out an inspection which was sufficiently thorough to reveal the wire. Even if they ought to have noticed it, that is not equivalent to an intentional act. As the Adjudicator in the second decision stated when declining to award exemplary damages to the landlord, the unlawful act must have been committed intentionally in the sense of deliberately and in full knowledge that they were not meeting their obligations. The evidence does not establish that. In summary, I consider that there are insufficient grounds to award exemplary damages against the landlord in relation to the exposed wire.
Considering those factors, and the authority above, I am satisfied the landlord’s failure to ensure the premises did not have draughts was not intentional.
The evidence established that, once the tenant drew the issue of the draught in the front door to the landlord’s attention, the landlord took action to remedy it. After receiving the 14-day notice to remedy on 6 September 2024, the landlord had a contractor attend the premises on or about 20 September, and again in November, to try and remedy the issue with the bottom of the front door.
During the hearing, the landlord agreed it was appropriate to have the contractor return to assess the front door after the hearing and carry out any repairs necessary.
I consider the evidence of the landlord’s attempts to remedy the front door, and concession that more work is required, indicates the unlawful act was not intentional as the landlord took reasonable steps to remedy the issue upon being made aware of it.

Did the landlord issue a retaliatory notice?

On 6 September 2024, the landlord issued a notice to the tenant stating he intended to place the premises on the market and the tenancy would end on 7 December 2024. The tenant 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 by the RTA or any other Act or any complaint by the tenant against the landlord relating to the tenancy. 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 tenant submitted the landlord was motivated to terminate the tenancy because the tenant has assisted his neighbour, another tenant of the same landlord, who occupies the house behind the tenant’s house. The tenant had acted as representative for his neighbour in disputes with the landlord brought in the Tenancy Tribunal, and subsequently the District Court. The tenant said that in the course of those other proceedings the landlord had stated he was never going to sell the tenant’s premises. The tenant says the landlord purported to issue the notice to terminate on 6 September 2024 because he intended to sell, but the tenant says it was really in retaliation to the tenant assisting his neighbour.
The landlord says the notice to terminate which stated he intended to place the premises on the market was lawfully given. He says the tenant has been helping his neighbour for over two years therefore that was not a new development which the landlord was retaliating to in giving notice to terminate the tenancy on 6 September 2024. The landlord also said that during the disputes related to the neighbour’s tenancy, the landlord did not say he was never going to sell the premises, rather he states that when he was asked if he was going to sell the tenant’s premises, he told the adjudicator, “Maybe soon.” Lastly, the landlord said it was a family decision to sell the premises and he referred me to a market appraisal completed on 10 October 2024 as evidence that was the motivation for giving the tenant notice to terminate.
I find the landlord did not commit an unlawful act. The evidence does not establish that the landlord was wholly or partly motivated by the tenant exercising a right under the tenancy agreement or by the RTA or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
The tenant points to his involvement acting as his neighbour’s representative in a dispute about the neighbour’s tenancy, in which the landlord is also the landlord. However, the tenant must show that he has exercised a right in relation to his own tenancy, and that that has motivated the landlord to terminate. The evidence that the tenant had assisted another tenant, in relation to another tenancy, does not satisfy the requirements of s 54(1) of the RTA.
Even if I am wrong on that, I do not accept the landlord stated he would never sell the premises. The landlord provided a transcript of the hearing held 6 May 2024 (application 4840501). The transcript records that when the adjudicator asked the landlord whether he was selling the other house, 2 he replied, “Maybe soon, yeah. Maybe after this.” It is therefore apparent that the landlord was considering selling the tenant’s premises in May 2024.
Lastly, I find the evidence that the landlord obtained a market appraisal in October 2024 consistent with his stated intention to sell the premises. While I do not find that evidence determinative, it is consistent with the other evidence to which I have referred.
It follows that I find the notice given on 6 September 2024 was lawfully given. However, while that is so, I note that the date for termination under that notice has passed, being on 7 December 2024. During the hearing, the landlord accepted further work was required to remedy the front door of the premises. 3 Given the intended termination date has passed, and the agreed work to the front door still needs to be done, I make an order in the nature of a declaration that the notice to terminate given on 6 September 2024 is of no effect. 4 Work order
The tenant claims that the landlord has not maintained the property to a safe standard, specifically he raised complaints about the front door, the deck, the east fence, the west fence, and the clothesline. The tenant issued a 14-day notice to remedy these issues (and others) on 6 September 2024 but says these issues were not fixed. He seeks a work order that the landlord remedy all five issues. 2 In the context of the exchange, I am satisfied the reference to “the other house” was a reference to 12 Danube Lane. 3 Discussed further below regarding the work order claims. 4 Section 78(1)(a) of the RTA.
Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986. Front door: has the landlord failed to comply with their obligations?
The tenant described the front door as “mangled” and falling apart. The tenant says it doesn’t close properly and the latch sometimes fails so that the door opens by itself. He states it needs replacement.
The landlord produced evidence that work had been carried out in September and November (referred to above at 25 - 26) to remedy the issues raised by the tenant. The landlord agreed to having the contractor (or another) come back to the house for a third occasion and carry out any further work necessary.
Mr Folau was called as a witness. He reviewed photos provided by the tenant which the tenant stated showed the joins at the top of the door had come apart and there were no screws to hold the door together. Mr Folau agreed it would be appropriate to assess the door again and see what else could be done to remedy the issue.
By consent, I make an order that the landlord repair or replace the front door to ensure the latch is working and it is watertight and without a draught.
Neither party produced evidence of the cost of repairing or replacing the door. I impose a global alternative monetary order of $800 for both the front door and front deck repairs which I consider reasonable. Front deck: has the landlord failed to comply with their obligations?
The tenant stated the front deck, which was painted in October 2024, is slippery. The tenant also complains that the handrails are rotten and unsafe. The tenant produced photos of the deck and the allegedly rotten handrails taken on 10 December 2024.
The property manager stated she did not consider the deck was slippery because she had been to the property recently, on 21 November 2024, and had not found the deck slippery. However, Ms Ye confirmed it was not a wet day when she visited on 21 November 2024 and that she has not visited the property on a wet day. I put her evidence as to the slipperiness of the deck to one side.
Mr Folau confirmed he had supervised the painting of the deck. He stated that in his opinion it should not be slippery as the painters used exterior paint on grip tread decking. He suggested some adhesive strips could be added to the deck if considered necessary.
As to the handrail, Mr Folau reviewed photos taken by the tenant on 10 December 2024 and said that, while he would like to confirm by inspecting the handrail, if the rot impacted the structural integrity of the handrail posts, they should be replaced.
I accept the handrails appear to show rot, and if they are found to impact the structural integrity of the posts, they may present a safety issue. I therefore order that the landlord repair or replace the rotten portions of the handrail on the front deck.
Neither party produced evidence of the cost of repairing or replacing the handrail posts. Therefore, as stated above, I impose a global alternative monetary order of $800 for both the front door and front deck repairs which I consider reasonable.
I am not satisfied the tenant has demonstrated the front deck is slippery. I accept Mr Folau’s evidence that the materials used should not cause an issue and note the tenant did not produce any evidence from the occupants of the home that they find the deck slippery. I make no order in respect of the deck surface. West fence: has the landlord failed to comply with their obligations?
The tenant states the fence on the western boundary of the premises needs repairing or replacing. The tenant accepts the landlord has, in response to the 14-day notice to remedy issued on 6 September 2024, replaced some posts, but says this does not fix the issue.
The landlord says they got their contractor, Mr Folau, to look into the issue and he took all steps necessary. Essentially, the landlord says no further work is required to make the western boundary fence safe and secure.
Mr Folau stated that he attended to the western boundary fence in September or October. He confirmed he replaced four of the posts. He stated a tree near the boundary was causing some issues with the fence, but that, without removing that tree, there was little else that could be done. In terms of any safety issues, Mr Folau said he was satisfied the fence is solid.
I accept Mr Folau’s evidence that the fence has been made structurally safe. I find the landlord has complied with their obligations and dismiss the claim for a work order in relation to the western boundary fence. East fence: has the landlord failed to comply with their obligations?
The tenant states the fence on the eastern boundary of the premises also needs repairing or replacing. The tenant accepts the landlord has, in response to the 14-day notice to remedy issued on 6 September 2024, replaced some posts and palings, but says this does not fix the issue.
The landlord says their contractor, Mr Folau, was also asked to look into the issues with the eastern boundary fence and say he took all steps necessary. Essentially, the landlord says no further work is required to make the eastern boundary fence safe and secure.
Mr Folau stated he, or his contractors, replaced 10 posts on the eastern boundary. Eight of the replacement posts are visible in the photos produced by the landlord. Mr Folau stated the fence had been built using posts which were too small, and therefore weak, and which had not been dug sufficiently into the ground. Mr Folau says the replacement posts were the required size, and were dug 600mm into the earth and strengthened with concrete footings.
When questioned by the tenant on the safety of the fence and whether it was rotten, Mr Folau said he’s seen far worse but that he considered it stable.
I accept Mr Folau’s evidence that the fence was made structurally safe. I find the landlord has complied with their obligations and dismiss the claim for a work order in relation to the eastern boundary fence. Clothesline: has the landlord failed to comply with their obligations?
The tenant states the rotary clothesline has rusted and is beyond repair. The tenant accepts the landlord has, in response to the 14-day notice to remedy issued on 6 September 2024, carried out some work on the clothesline, but says the work done does not fix the issue and complains that, as a result of that work, the clothesline no longer rotates.
The landlord says their contractor, Mr Folau, was also asked to look into the issues with the clothesline and say he took all steps necessary. Essentially, the landlord says no further work is required to fix the clothesline. The landlord produced photos which they said were taken on 13 or 14 September 2024 which work was done to replace the internal shaft of the clothesline.
Mr Folau stated the internal bracket of the clotheslines had rusted out and needed replacing. He said his contractors removed the rusted portion and welded new pieces. He said that the internal bracket needed to be made larger and as a result, the clothesline could no longer rotate. Mr Folau said this remedy meant the clothesline was far stronger. Mr Folau said his contractor did some work initially in September but that he got a welder to do further amendments in mid to late October.
I am satisfied that the work carried out by the landlord’s contractor made the clothesline functional and safe. While I acknowledge that the repairs mean the clothesline no longer rotates, I do not consider that impedes the use, or safety, of it.
I find the landlord has complied with their obligations and dismiss the claim for a work order in relation to the clothesline. Filing fee
The tenant sought reimbursement of the application fees he paid for the two applications (4997948 and 5011753). However, the tenant has not substantially succeeded with either claim therefore I make no order for reimbursement of the filing fees.

Tenancy Tribunal case 5011753 — Healthy homes at 12 Danube Lane, Glen Eden, Auckland 0602

At a glance

Tenancy Tribunal case 5011753 — Healthy homes at 12 Danube Lane, Glen Eden, Auckland 0602

At a glance

Claims & awards

Order

Reasons

Home information on request?

Did the landlord issue a retaliatory notice?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Home information on request?

Did the landlord issue a retaliatory notice?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions