What was the outcome of Tenancy Tribunal case 5049208?

The tribunal order states: Parklane Real Estate Limited T/A Ray White As Agent For Angela & Glenn

How much money was awarded in case 5049208?

Compensation: $3,000.00 awarded to tenant

What type of tenancy dispute was case 5049208?

The dispute type was not classified.

Where can I read the official tribunal order for case 5049208?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11366018-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5049208?

The tribunal order states: Parklane Real Estate Limited T/A Ray White As Agent For Angela & Glenn

How much money was awarded in case 5049208?

Compensation: $3,000.00 awarded to tenant

What type of tenancy dispute was case 5049208?

The dispute type was not classified.

Where can I read the official tribunal order for case 5049208?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11366018-Tenancy_Tribunal_Order.pdf.

28 Grassmere Road, Henderson Valley, Auckland 0612 Tenancy Tribunal Case 5049208 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5049208 — net $3,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$3,000.00	Compensation
Net award	$3,000.00
Total payable by Landlord to Tenant	$3,000.00

Claims and awards in Tenancy Tribunal application 5049208 — net $3,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$3,000.00	Compensation
Net award	$3,000.00
Total payable by Landlord to Tenant	$3,000.00

Order

Parklane Real Estate Limited T/A Ray White As Agent For Angela & Glenn Gunton must pay Charmaine Penfold-Ulrich and Tala Nuualofa Iu $3,000.00 immediately.

Reasons

Both parties attended this video hearing on 28 January 2025.
The tenancy commenced on 30 July 2024. It was initially a fixed term tenancy to end on 29 July 2025. The tenancy ended by agreement between the parties on 21 October 2024.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the tenant must establish that what they are claiming is more likely than not.
The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. 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.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like 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.” (the emphasis is mine).
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, the parties have submitted documentary evidence including emails, photos and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
At the commencement of the hearing, the tenant applied for an adjournment. She had tried to file further documents to support her case the day prior to the hearing. Unfortunately, those documents were not sent to the correct email address for the Tribunal. A notice of the hearing had been sent to the tenant by the Tribunal on 8 November 2024. That notice records that the last date for filing information is 72 hours before the hearing date. The tenant has had sufficient time to file any further supporting documents in the time leading up to the hearing and the tenant’s application for an adjournment was dismissed.
The tenant seeks; • Refund of the bond. • Compensation for the landlord’s failure to provide the premises in a reasonable state of cleanliness. • Exemplary damages for the landlord’s failure to provide the premises in a reasonable state. • Reimbursement of the filing fee. Tenant Evidence
The tenant says that the tenancy commenced on 30 July 2024. When they went to the premises on the 30 th to start leaving their belongings, they discovered a flea infestation. The tenant referred to the infestation as being massive. One of her children was quickly covered in flea bites. The tenant could see fleas on the skirting boards. The tenant removed her children from the premises and took them to her mothers.
The tenant contacted the landlord on 30 July 2024 to discuss the issue.
The landlord arranged for a pest control company to attend the next day to commence fumigation. The landlord arranged for a hotel for the tenants overnight.
The fumigation company said that the premises would be safe for the tenants to return to four hours after the fumigation had been carried out. It should be made clear that this “safety” is safety from the fumigation process. It does not mean the at the flea infestation would be ended.
Not surprisingly, the tenant refused to return to the premises four hours after the fumigation.
The landlord arranged for the tenants to live at an Air BnB for the next 7 to 8 days whilst further fumigation was carried out.
The tenants returned to the house on 8 August 2024.The tenants said that despite the fumigation work that had been carried out, the house still had fleas and provided photos in support of their claim. The tenants provided numerous photos of bite marks.
The tenants accepted that they did have three cats. Their evidence was that fleas had not been an issue at their previous tenancy and that the cats were regularly treated for fleas. I record that I accept that the fleas were present at the tenancy prior to the commencement of this tenancy.
The tenants complained that they now have fleas at their new tenancy. They say that the fleas have been transported in their bedding and children’s toys.
The tenants complain of only being able to live in the lounge and kitchen in a three bedroom house as the rest of the house was infested.
The landlord provided then with a $250.00 Prezzy card as an acknowledgement of the poor start to the tenancy. The landlord paid for both the hotel and the Air BnB. The landlord contributed to the tenant’s shifting costs and agreed to ending the fixed term tenancy early. Landlord evidence
The landlord says that they had no prior knowledge of the flea problem. The previous tenancy ended on 13 June 2024. That tenant provided evidence that there were no fleas.
The landlord had contractors at the premises on 18 June 2024 and 27 June 2024 and they did not see any fleas. Another contractor was at the premises on 3 July and 30 July 2024 and they did not see any fleas.
The property manager went to the premises a few days prior to the commencement of the tenancy and did not notice any fleas.
The evidence of the pest controller who carried out the fumigation on 1 August 2024 was that there was a medium level of flea activity in the interior of the premises.
The landlord says that upon discovering the infestation they have taken all reasonable steps. • They have paid for alternative accommodation. • They have fumigated the premises three times. • They have provided the tenant with a $250.00 gift card. • They have allowed the tenant to breach the fixed term tenancy. • They have assisted the tenant with some of the removal costs.
Having reviewed the evidence, it is clear that the fleas were present prior to the commencement of the tenancy. They did not suddenly appear on 30 July 2024. The fumigation company recorded that 2 days later there was a “medium level of activity”.
I accept the landlord evidence that they were not aware of the infestation prior to the tenancy commencing. Law
Section 45(1) RTA provides that a landlord must provide the premises in a reasonable state of cleanliness and the tenant is required to keep the premises reasonably clean and tidy.
Section 45(3) RTA makes it clear that a tenant’s knowledge of the state of the premises as the start of the tenancy does not absolve the landlord from the requirement to provide premises which are reasonably clean. The appropriate time for the tenant to raise the issue of cleanliness is at the commencement of the tenancy, not the end. Premises infested with cockroaches or other vermin have been found to be a breach of s.45(1)(a) RTA (see Habibi v Baseden Property Management Ltd TT 09/02144/HE, 27 October 2009).
I find on the evidence that the premises were not provided in a reasonable state of cleanliness. Section 45(1A) RTA provides that it will be an unlawful act for a landlord to provide premises which are not reasonably clean. The landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.
The court confirmed that the landlord must actually be aware of the breach. ‘Intentional’ means “in the sense of deliberately and with full knowledge” of the breach. (see Para 29 and 30 TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182).
The landlord says that she had no prior knowledge of the infestation and provided supporting evidence. I accept that evidence and accordingly the tenants claim for exemplary damages is dismissed as the landlord has not acted intentionally.
There remains the issue of compensation for loss of amenity of the premises. The tenant had entered into a fixed term contract with the landlord no doubt in the expectation of being able to live comfortably at the premises. There is no doubt in my mind that the premises were not provided in a reasonably clean state. This had caused substantial stress, inconvenience and discomfort to the tenant. The Tribunal has the jurisdiction to order general damages (see Birch v Otautahi Community Housing Trust [2020] NZDC 17667).
The Tribunal in Palmer v Housing New Zealand (No 2) held that when assessing the quantum of general damages, the Tribunal must take into account the following factors: A. The nature of the breach; B. The duration of the breach; and C. The effect of the breach on the party.
More recently, the Tribunal’s power to award compensation was increased from $50,000.00 to $100,000.00 by s 50 of the Residential Tenancies Amendment Act 2020, which means the Tribunal’s orders for general damages can range as high as $100,000.00 if such harm is proven.
The Tribunal’s general damages awards have historically been low. In Birch v Otautahi Community Housing (supra) R E Neave DCJ described the Tribunal’s awards for emotional harm damages as “not particularly generous” and “fairly conservative.” In the case before His Honour, the tenant had returned to her unit and found someone had entered without her permission. It transpired contractors had done asbestos repair work in the tenant’s unit and the landlord had mistakenly failed to give the tenant notice of the entry.
His Honour found the Tribunal’s award of $200.00 for emotional harm damages for the unlawful entry was “close to being derisory.” He substituted an award of in the sum of $2,000.00 finding “it was a significant intrusion on [the tenant’s] rights.”
By reference to Otautahi, I consider the bands that might usefully inform the Tribunal’s decision in this case are: A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $2,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $2,000.00 to $3,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of over $3,000.00.
I accept the tenant was hugely upset by the infestation. It resulted in her living in temporary accommodation and bringing the tenancy to a justified early end.
The nature of the breach was a complete failure to provide what was contracted for. The effect on the tenant was serious. The tenant suffered inconvenience, frustration, disappointment and stress.
I consider the tenant’s emotional harm falls at the top end of category B. In all the circumstances, I order the landlord to pay the tenant $3,000.00 for the tenants’ emotional harm and loss of amenity. Bond
The tenant seeks return of her bond. Section 22B RTA allows the Tribunal to determine to whom the bond is to be paid.
The parties agreed on terms for the release of the bond prior to the hearing and the bond was paid out. The landlord received $1,144.99 for cleaning and a range of other claims. The balance of $1,855.01 was paid to the tenant. The tenant signed the bond release form The tenant now disputes the landlord claims and seeks to have the bond refunded.
The Tribunal is required by s.85 RTA to deal with matters in a manner which is likely to ensure a fair and expeditious resolution of disputes. I am required to consider the substantial merits and justice of the case. Where parties have entered into a settlement agreement, I do not consider it to be fair or meritorious to later attempt to resile from the agreement. For that reason, the tenant’s application for release of the bond is dismissed.
Both parties have achieved a degree of success and I make no order for reimbursement of the filing fee.

Tenancy Tribunal case 5049208 — Tenancy dispute at 28 Grassmere Road, Henderson Valley, Auckland 0612

At a glance

Tenancy Tribunal case 5049208 — Tenancy dispute at 28 Grassmere Road, Henderson Valley, Auckland 0612

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions