What was the outcome of Tenancy Tribunal case 5029770?

The tribunal order states: Shelter Realty T/A Harcourts New Lynn As Agent For Neil & Brenda For

How much money was awarded in case 5029770?

Compensation: Loss Of Amenity: $3,300.00 awarded to tenant; Property Damage: $374.40 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5029770?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 5029770?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11152877-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5029770?

The tribunal order states: Shelter Realty T/A Harcourts New Lynn As Agent For Neil & Brenda For

How much money was awarded in case 5029770?

Compensation: Loss Of Amenity: $3,300.00 awarded to tenant; Property Damage: $374.40 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5029770?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 5029770?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11152877-Tenancy_Tribunal_Order.pdf.

12 Strid Road, Te Atatu South, Auckland 0610 Tenancy Tribunal Case 5029770 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5029770 — net $5,701.40 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of amenity	$3,300.00	Loss of amenity
Exemplary damages: Breaches of s 45	$2,000.00	Breaches of s 45
Compensation: Wheelchair repair	$374.40	Wheelchair repair
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,701.40
Total payable by Landlord to Tenant	$5,701.40

Claims and awards in Tenancy Tribunal application 5029770 — net $5,701.40 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of amenity	$3,300.00	Loss of amenity
Exemplary damages: Breaches of s 45	$2,000.00	Breaches of s 45
Compensation: Wheelchair repair	$374.40	Wheelchair repair
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,701.40
Total payable by Landlord to Tenant	$5,701.40

Order

Shelter Realty T/A Harcourts New Lynn As Agent For Neil & Brenda For Bhagwanji Third Investments Limited must pay Steven John Jackson $5,701.40 immediately, calculated as shown in the table below:
The tenant’s applications for unlawful discrimination and for damages to his motor vehicle are dismissed.

Reasons

The tenant attended the hearing. Ms Nash, Property Manager for Harcourts New Lynn, and Mr Yu, General Manager of Property for Harcourts New Lynn, attended the hearing for the landlord.
The tenant claims that the landlord has unlawfully discriminated against him, breached its obligations to maintain the property and/or comply with the Healthy Homes Standards. The tenant is seeking compensation, exemplary damages, and reimbursement of the filing fee. Burden of proof:
It is not uncommon in tenancy disputes for the parties to have different recollections of events. When this happens, it is necessary for the Tribunal to make a finding as to which version of events it accepts. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations including that it is up to the party bringing the application to establish their claims “on the balance of probabilities”. That means that the applicant must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
The District Court in Kaipo v Clarke & McCarthy (DC) TT233/02 noted 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

Did the landlord unlawfully discriminate against the tenant?

The tenant claims that the landlord discriminated against him by seeking his agreement not to use his wheelchair inside the premises.
Sections 12(1) and 109(3) of the Residential Tenancies Act 1986 (RTA) provide that a landlord must not discriminate against a tenant in relation to the grant, renewal, variation or termination of a tenancy, in contravention of the HRA.
Section 12(1) and Schedule 1A of the RTA provide that breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00.
Section 21 of the Human Rights Act 1993 (HRA) specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
The tenant said that he has used a wheelchair following an accident in 2022. The tenant said that while he can walk, he needs the wheelchair. I accept that the tenant needs to use the wheelchair due to an injury and that his condition amounts to a disability within the meaning of section 21(1)(h) of the HRA.
The tenant says that prior to moving into the premises, he was advised by Ms Nash that the landlord was considering replacing the carpet but was concerned that it may be damaged by the wheelchair. The tenant said that it was agreed that he would keep his wheelchair in the shed.
Ms Nash denied ever saying that the tenant could not bring the wheelchair into the premises or seeking the tenant’s agreement that he would not do so. She says that there was a concern as to how well the wheelchair would work on the carpet.
On 28 September 2023, the tenant sent an email to Ms Nash in which he stated “... and the landlord being unwilling to have my chair inside, because of the carpet”. Ms Nash replied that day saying “... at no stage have myself or the owner ever said you can’t have your wheelchair inside”.
As set out above, it is for the applicant (in this case the tenant) to prove his case. Where there is a conflict in the evidence provided, I must reach a decision of what occurred using the civil standard of basis or probabilities. Given that the onus is on the tenant to prove that discrimination occurred, and the email communication referred to above, I find is more likely than not that the landlord did not tell the tenant that he could not, or seek the tenant’s agreement that he would not, bring the wheelchair inside.
The claim for discrimination is dismissed. Did the landlord fail to maintain the premises and/or fail to comply with the healthy homes standards?
Section 45 of the RTA provides that a landlord must (among other things) provide and maintain the premises in a reasonable state of repair and comply with the Healthy Homes Standards. Section 45(5) of the RTA provides that premises includes facilities.
Compliance dates for the Healthy Homes Standards for private rentals are: a. 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 b. 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. c. All private rentals must comply by 1 July 2025.
The Healthy Homes Ventilation Standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable.
The Healthy Homes Draft 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.
Section 45(1A) and Schedule 1A of the RTA provides that breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
The tenant says that for the duration of the tenancy, there have been leaks, draughts in windows and doors, two windows have been falling out and that draughts have caused mould on every wall and ceiling and a rotten floor in the bathroom. The tenant also complains of the driveway being damaged, floods in the garden, and a broken fencepost. The tenant said that he complained to Ms Nash about these matters in text messages and emails and during the routine inspections.
The relevant background facts are as follows: a) In 2019, the landlord obtained a Healthy Homes Standards Report. The Report identified areas which did not satisfy the standards. The landlord has provided evidence that these issues were remedied in 2021. b) The tenancy started on 10 February 2023. c) On 22 March 2023, a routine inspection was carried out. The Inspection Report did not record any issues. d) On 21 April 2023, the tenant sent a text message to Ms Nash saying the glass screen in the bathroom was dangerous. e) On 20 May 2023, the tenant sent a text message to Ms Nash saying the fence needed to be repaired. f) The tenant says that in June 2023, he verbally reported to Ms Nash a draft issue from the doors. To support this, the tenant referred a text message he sent to Ms Nash (see paragraph 22(h) below) on 09 January 2024. g) On 15 June 2023, a routine inspection was carried out. The Inspection Report records that the tenant had reported a fence post had snapped but Ms Nash had checked it and considered it was secure and that the oven door needed adjusting. h) On 19 September 2023, a routine inspection was carried out. The Inspection Report records that the gutter was leaking at a corner and repairs were required. i) On 12 December 2023, a routine inspection was carried out. The Inspection Report noted the gutter issue (referred to in the September 2023 Inspection Report which had not been fixed) and that a window hinge in the lounge could no longer open and there was water damage in the bathroom. j) On 09 January 2024, there were several text messages between Ms Nash and the tenant regarding the condition of the property. The tenant wrote that the front and back doors had gaps of 10mm at the bottom and this was causing a draft. He said that this meant “...we were freezing all winter” and said “I showed you 6 months ago”. k) Ms Nash responded by saying that the premises had passed a Healthy Homes inspection. The tenant replied: ... I know for a fact there is draughts in windows and doors. That are so bad it was freezing all winter, and the whole house didn’t warm up. I also know for a fact I showed you a 10mm+ gap in front door. And missing foot guard from rear door, and this was months ago. ... l) On that same date, there were further text messages between Ms Nash and the tenant in which he raised the following complaints regarding the vent on outside of the house being broken, all windows needing to be checked due to rust and he advised that another window had fallen out. m) On 27 March 2024, a routine inspection was carried out. The Inspection Report notes the snapped window hinge (recorded in the previous Inspection Report and not yet remedied) and that there were gaps in the windows in the lounge and two of the bedrooms. n) On 25 June 2024, a routine inspection was carried out. The Inspection Report notes the damage from previous reports: leaking gutter and damage to the window hinge, gaps in other windows and damage to the bathroom floor. In the report it was also noted that: i. the grass on the driveway needed to be sprayed or would start to damage the driveway; ii. the tenant had complained air was coming from under the front and back doors; iii. the vanity in the bathroom was “starting to move”; iv. the wood in the bathroom is water damaged but the floor “still feels solid”; The report also noted mould appearing in some rooms. o) On 31 August 2024, the tenant sent an email to Ms Nash issuing a 14-day notice to remedy. The tenant wrote: 2 years of winters, with no repairs healthy home standards is being breached. Cold causing severe pain and sickness for me and children 2 windows still broken for 6 months. As discussed there is a broken hinge on the lounge window and laundry window. Other windows have gaps. Floor in bathroom still not repaired for 9 months. Plumbing still causing damage. For whole tenancy Driveway causing damage to cars suspension Unable to maintain lawns due to drainage and flooding for nearly 2 years. Mould everywhere for months can’t sort it. Vents that are broken on outside of house. Reported 6 months ago. Not fixed. All reported to you repeatedly for the last year, yet no repairs have been completed. ... Please consider this as a 14 day notice to remedy.
Following the issue of the 14-day notice to remedy, the landlord took action and the majority of the issues were remedied by the end of October 2024.
Some matters were fixed before then, including the glass screen in the bathroom which the tenant removed in April 2023. There was also an issue with the rear step which the tenant says was reported by the tenant in February 2023 and fixed in March 2023.
I find that the landlord has breached section 45 by failing to maintain the premises. I also find that the landlord has failed to comply Healthy Homes Ventilation Standard by failing to ensure that all of the windows could open and the Healthy Homes Draught Standard.

Should the tenant be awarded exemplary damages?

I have found that the landlord has committed multiple breaches of section 45 of the RTA. The tenant is seeking exemplary damages. Section 45(1A) and Schedule 1A of the RTA provide that breaching any of the obligations under section 45 is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732, the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of RTA. Section 109 of the RTA provides 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 landlord had engaged a professional property manager as agent at all relevant times. I find that Ms Nash and, therefore, the landlord was aware of the issues and failed to take action to remedy them within a reasonable amount of time. Ms Nash acknowledged being aware of many of the issues and says that the delay in fixing the issues was that Harcourts New Lynn mainly uses one tradesperson who was away for a period. She also said that from June 2024 to September 2024 “there was no excuse” for the failure to remedy the issues with the premises.
Given that the premises were managed by a professional property manager and that landlords are deemed to know the law (See TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, para 37). I find that the act of failing to maintain the premises was intentional. I am also satisfied that it is appropriate to award exemplary damages for the following reasons: a. The effect of the unlawful act was that the tenant and his family resided in a poorly maintained premises. It is likely that the premises would have been unhealthy. b. There is a strong interest for the tenant to live in a properly maintained and safe premises. c. There is an associated public interest that tenancies are property maintained and that landlord comply with their obligations under the RTA.
The maximum award for breaching any of the obligations under section 45 is $7,200.00. (See schedule 1A of the RTA.) The breaches by the landlord fall within section 45 of the RTA and, while there are multiple breaches, the Tribunal can only make an exemplary damages order for breach of section 45. (See Gardiner, Griffiths, Groves, Venter and O’Connor v Upland Bay Investments Limited CIV-2014-085-13, 27 August 2014 and Ministry of Business, Innovation and Employment (Tenant) v Hillis Shearing Limited [2024] NZDC 27583.)
I consider that exemplary damages are warranted for the landlord’s breach of section 45. The challenge then becomes assessing the level of exemplary damages to order. The amounts set out in Schedule 1A are maximum amounts. The Tribunal would only order a maximum level of exemplary damages, (in this case, $7,200.00) in the most egregious of cases, particularly when there is a history of breaches being considered in the Tribunal, and the Tribunal’s orders have been ignored. That is not the case here.
In The Ministry of Business, Innovation and Employment (on behalf of Tenants) v Hillis Shearing Limited [2024] NZTT4515709, this Tribunal ordered exemplary damages of $3,600.00 for breaches of section 45. 1 However, in that case the premises were described by the Tribunal as dilapidated. Not only was there a finding that the premises had failed to be maintained, the landlord was also found to have breached its obligations under section 45(1)(c) of the RTA which requires landlords to “comply with all requirements in respect of buildings, health and safety” by failing to have an updated building warrant of fitness.
I consider the appropriate award for exemplary damages in this case is $2,000.00. Should the tenant be awarded compensation for the landlord’s breaches of section 45 of the RTA?
I also consider an award of damages for loss of amenity is appropriate. The tenant gave evidence that the landlord’s failure to maintain the premises and breaches of the Healthy Homes Standards meant that he and his family lived in a draughty and cold house for two winters. The tenant believes this contributed to one of his family members suffering from poor health and having to take time off school.
The tenant was paying rent and as part of that rent, the tenant had a legitimate expectation that the landlord would comply with its obligations under section 45 of the RTA. In short, the tenant did not get what he paid for.
The tenant’s rent is $550.00 per week. I accept that the tenant first raised issues of draughts in the premises in June 2023 and most of the work was completed by October 2024. I also note that the driveway was poorly maintained from the start of the tenancy until 31 October 2024 and the shed was not fit for purpose for a period of 2 months. 1 The amount of exemplary damages awarded by the Tribunal was upheld on appeal to the District Court. See Ministry of Business, Innovation and Employment (Tenant) v Hillis Shearing Limited [2024] NZDC 27583.)
I award $3,300.00 in damages which is approximately 10% of the tenant’s rent during the period June 2023 to October 2024. In reaching this figure, I have considered section 49 of the RTA which provides that where a party to a tenancy agreement suffers a loss, that party has an obligation to mitigate its losses. The tenant submitted his claim to the Tribunal in October 2024. The tenant could have mitigated his losses by applying to the Tribunal much earlier. Is the landlord liable for damage to the tenant’s wheelchair?
The tenant says the shed where he kept his wheelchair leaked in February and again on 18 March 2024. Ms Nash says the leaks occurred following heavy rain in March and May 2024. The tenant is claiming for the cost of fixing his wheelchair.
The relevant written correspondence is as follows: a. On 10 March 2024, Ms Nash sent the tenant a text message saying that there were heavy rain warnings for that morning and suggesting the tenant moves his wheelchair. b. On 18 March 2024, the tenant sent the landlord a text message saying “wheelchair batteries are now dead got drowned again last night” c. On 09 May 2023, the tenant sent the landlord a text message saying that the shed was “under water again. Chair soaked again”. d. On 13 September 2024, the landlord emailed the tenant saying that the landlord was awaiting on the original invoices and that the “owner is prepared to give compensation once invoices are received” e. On 16 September 2024, the landlord sent an email to the tenant saying that: The DK-PRMB40 Power module 166.38 – Owner is happy to pay this once you provide evidence that this was paid twice and refunded once. Install and programming 110.00 – Owner is happy to pay this once he has the invoice. Currently you have provided a Quotation and proof of payment but no actual invoice. Batteries x 2 329.80 – Owner is happy to pay this once he has proof of payment. Currently you have provided an An Order. Batters x 2 attached 329.80 – no invoice, order or payment confirmation
As set out in the above email correspondence, the landlord originally accepted liability for the repairs to the wheelchair and was willing to pay subject to the tenant providing the invoices and proof of the payments made and the refund. However, at the hearing, the landlord appears to have changed its position saying that it does not know which flood caused the damage and the tenant should have moved his wheelchair after the first flood.
Section 49 of the RTA provides: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The question then becomes, what are the rules of law relating to mitigation of loss or damage following a contract breach? The rules of law are summarised in Halsbury’s Laws of England (4th ed, 1975) vol 12 at [1193]–[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. “The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.
The tenant says the damage was done when the shed leaked in February and that was when he started to purchase the parts to fix the wheelchair himself. However, documents the tenant has put forward as evidence of the sums spent on the wheelchair are dated after the second time the shed flooded.
The landlord was first notified that the shed was not watertight by at least March 2023. However, it was not replaced until June 2023. This meant the tenant had a shed that was not fit for use for over 2 months. This is a loss of amenity, and it is reflected in my award for the same at paragraph 38 above.
On the basis of probabilities, I find that the wheelchair suffered some damage when the shed leaked in February and further damage after the shed leaked in May. I also find that after the shed leaked in February and after the landlord’s text message in March, the tenant should have stored his wheelchair in the house. Not doing so was a failure to mitigate his losses. It is impossible to know how much damage was caused when the shed leaked in February or in May and I reduce the award by 60%. Is the landlord liable for damage to the tenant’s vehicle?
The tenant is claiming $524.00 to repair the suspension in his vehicle which has says was caused by using the driveway.
The tenant has provided photographs of the driveway which show the driveway was in a poor condition and an estimate from a mechanic to fix the vehicle.
The landlord questions if the damage to the vehicle was caused by the driveway. The landlord asked the tenant for a report from his mechanic on the issue. The tenant has not provided the report and says it is unreasonable for the landlord to request it.
As set out above, it is the applicant who has the burden of proof. On the information provided by the tenant, I am not satisfied that the damage to the vehicle was caused by the driveway. This claim is dismissed.
That said, I note that the driveway was in a poor condition until it was fixed on 31 October 2024. No doubt this caused inconvenience to the tenant, and this is reflected in the compensation award for failure to maintain the premises. Other claims:
At the hearing, the tenant raised additional claims that were not specified in his application including a claim that he should not have been required to reimburse the landlord for a visit from an oven maintenance consultant because he had not been provided with the instruction manual for the oven and a claim that he was harassed by the landlord.
The landlord did not agree to these claims being heard. These claims have not been dismissed. If the tenant wishes to pursue these claims, he will need to file a further application. Filing fee:
Steven John Jackson has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee.

Tenancy Tribunal case 5029770 — Exemplary damages at 12 Strid Road, Te Atatu South, Auckland 0610

At a glance

Tenancy Tribunal case 5029770 — Exemplary damages at 12 Strid Road, Te Atatu South, Auckland 0610

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord unlawfully discriminate against the tenant?

Should the tenant be awarded exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord unlawfully discriminate against the tenant?

Should the tenant be awarded exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions