What was the outcome of Tenancy Tribunal case 5313921?

The tribunal order states: The tenant’s application for compensatory and exemplary damages is

How much money was awarded in case 5313921?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5313921?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5313921?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13031847-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5313921?

The tribunal order states: The tenant’s application for compensatory and exemplary damages is

How much money was awarded in case 5313921?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5313921?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5313921?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13031847-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 17 Epping Road, Henderson, Auckland 0610 Tenancy Tribunal Case 5313921 — Harassment

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Reasons

Both parties attended the hearing.

Michelle Skiffington was accompanied by her partner, Selwyn McDonald. Although Ms Skiffington is named as the tenant on the tenancy agreement, both Ms Skiffington and Mr McDonald lived at the property together with their children, and Ms Skiffington authorised Mr McDonald to present the claim on her behalf. For ease of reference I refer to them both as “the tenants”.

Liwen Purchase was accompanied by her husband, Mark Purchase. Stuart Appleby was also present as a support person. Although Mrs Purchase is named as landlord on the tenancy agreement, she and Mr Purchase managed the property together and Mrs Purchase authorised Mr Purchase to present the defence on her behalf. For ease of reference I refer to them both as “the landlords”. Onus and evidence

As with all claims that come before the Tribunal, the party bringing the claim bears the onus to prove their claim to the civil standard (on the balance of probabilities).

A large amount of evidence was filed in this matter. For the sake of brevity I have not referred to all of the evidence filed but the parties can be assured that I have carefully considered all of the evidence when making this decision. Background

This claim relates to a long-standing tenancy that began on 1 January 2006 and ended on 27 January 2023.

The tenancy property is a three-bedroom standalone house, situated down a shared driveway at the edge of Waikumete Stream. The stream runs along the back garden. The tenants’ claim

The tenants seek compensation of $43,000 together with exemplary damages following flooding of the tenancy property on Anniversary Day, 27 January 2023, as follows: a. Compensation for breach of the landlords’ obligations to repair and maintain under section 45(1) Residential Tenancies Act 1986 (RTA) as follows: i. loss of goods (approximate value $30,000) ii. Full rent refund for the period during which the two months period while they were displaced while premises uninhabitable (pursuant to section 59 RTA - $5,000) iii. Displacement hardship and costs associated with relocation ($2,000 - $3,000) iv. General damages for emotional distress, stress and trauma ($2,000 - $5,000) b. Compensation for breach of the landlords’ obligation not to interfere with the tenant’s quiet enjoyment under section 38 RTA due to unsafe living conditions and lack of communication, support or compensation after the flooding event and hardship while displaced. c. Exemplary damages for breach of the landlords’ obligation to repair and maintain and for breach of quiet enjoyment. d. Reimbursement of the filing fee of $28.00.

This claim was filed on 26 July 2025, two and a half years after the flooding event. The tenants acknowledged the delay in filing this claim and explained that they were focussed on finding a new home and rebuilding their lives and had only recently turned their minds to consider whether they may have a claim against the landlords. Events of 27 January 2023 and the aftermath

Mr McDonald said that during the heavy rain that occurred on Anniversary Day, 27 January 2023, he started to become concerned about the level of the water in the stream, particularly as the stream also rises with the tide.

As the level of the stream began to rise in the back garden he started to load up his van with essential items to take it up to the neighbour’s house which was further up the driveway. However by the time he got back down to the house to get another load water was pouring into the house and quickly rose to thigh height. He decided that it was too risky to enter the property again due to risk of electrocution as the electricity was still on in the house.

Ms Skiffington’s son, Tyson Skiffington, was called to give evidence. He described how quickly the water rose and how difficult it was to remove many belongings. His car was also caught in the floodwaters.

Mr McDonald said that they simply had to leave the property with the items they had taken up to the neighbour’s house. They were fortunate to have family that they could stay with but this was only on a very short term basis and the circumstances were far from ideal. They could not keep their pets.

Mr McDonald’s employer loaned him a truck to remove the rest of the family’s belongings once the flood waters had receded but very little could be salvaged.

Mr McDonald described the utter devastation that the family felt at losing not only their home of many years but their treasured possessions. When they returned, they found that all of the remaining belongings had been contaminated with floodwater. These included family photos, artwork and tattoo designs that can never be replaced.

Devon Brown, who was living at the property that the family initially moved to, was called to give evidence. He described helping with three or four large truck loads of items that had to be thrown away after the flooding.

The tenants said that the loss of their whare has deeply affected their mana and wellbeing as a Māori and Pasifika whānau. They explained that their home was more than just a shelter, it was their foundation and safe space and the sudden displacement caused significant emotional hardship, loss of routine, and cultural disconnection.

The tenants said that they now realise they were living in dangerous property located a flood plain and that it was entirely foreseeable that the property would flood in very heavy rain.

Mr McDonald explained that the landlords either knew, or ought to have known, of the flood risk because such information was readily available online on the Auckland Council GIS Flood Viewer and would have been recorded on the property’s LIM report.

The tenants produced comprehensive documentary evidence in support of their claim including copes of relevant text correspondence, maps showing the location of the property, a printout from the Auckland Council GIS Flood Viewer and a list of items destroyed in the floodwater and photos of those items (where available). The landlords’ response

The landlords said that the flooding that occurred on Anniversary Day 2023 was the result of an unexpected and extreme weather event and was not due to any failure on their part.

Mrs Purchase said that when she purchased the property in 1996 she had the LIM reviewed by a lawyer and was not advised of any flooding risk.

The landlords explained that they have always been diligent in maintaining the property and effecting repairs as necessary. They produced a comprehensive list of the repairs and maintenance taken from the start of the tenancy to date, which included over 30 items, together with available invoices.

Mr Purchase explained that as soon as it became apparent that widespread flooding was occurring across Auckland he immediately went to the property. He said that it was clear that the property had been badly flooded and was uninhabitable. He said that he and Mrs Purchase agreed to end the tenancy immediately (rather than giving notice), with no further rent payable, and the bond was refunded to the tenants.

The landlords denied breaching the tenants’ quiet enjoyment. They said they did not intrude on the tenants’ privacy or impede their clean up in any way and in fact disposed of some rubbish left behind at a cost of approximately $700 and did not even consider passing this cost on to the tenants.

The landlords produced a copy of “White Sticker” that was affixed to the door of the property by Auckland Council on 1 February 2023 at 3.15pm. The sticker stated that there had been a quick visual inspection of the building, that no structural problems were observed but noted that this did not mean that the building is completely safe, not damaged or that future events might cause more damage and change the assessment.

The landlords then explained that they received a letter from Auckland Council on 19 December 2023 advising that the property had been assessed as Category 3, which means that “future severe weather event risk is intolerably high and cannot be mitigated for your property”. The letter advised that the property was eligible for a voluntary buy-out from Auckland Council.

Mr Purchase said that the Auckland Council GIS Flood Viewer was only made available after the Anniversary Day flooding.

They both said that they had sympathy for the tenants and the position that they found themselves in, but that Mrs Purchase has complied with her obligations as a landlord. They said that they themselves had been left with a difficult clean up and insurance claim.

In relation to the tenants’ claim for exemplary damages, the landlords noted that any claim is subject to a 12 month time limit as set out in section 109(2) RTA. Have the landlords breached their obligations under section 45(1) RTA?

Section 45(1) of the Residential Tenancies Act (RTA) sets out the landlord’s responsibilities. The sections relevant to this application are as follows: a. Section 45(1)(a): to provide and maintain the property in a reasonable state of repair, having regard to the age and character of the property; and b. Section 45(1)(c) to comply with any relevant enactment in relation to buildings, health and safety.

Breaching these obligations 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. Repair and maintenance

The obligation to repair maintain is generally interpreted as requiring landlord to keep the property in the condition it was at the start of the tenancy, subject to fair wear and tear, and to remedy defects or disrepair.

The requirement to maintain is not absolute. The landlord does not have to foresee a latent and unobservable defect before it causes damage 1 . However if it can be proven that a competent landlord conducting regular inspections and review of the property would have noticed the defect then there may be a failure to maintain.

Mr McDonald said that the stream had come up very high on at least two prior occasions and that he had mentioned this to the landlords but they had taken no steps. The landlords could not recall the tenants raising the risk of flooding with them during the tenancy.

I think it likely that the tenants did mention the level of the stream to the landlords on at least one or two occasions during the tenancy even if the landlords could not recall them having done so due to the passage of time. However I do not consider that this should have alerted the landlords to any imminent flooding risk to the house. The tenants lived at the property for over 20 1 Barfoot & Thompson v Casey DC Auckland CIV 2005-004-1762, 7 November 2007 years and could only recall mentioning the stream level on one or two occasions. There was no evidence that the level of the stream had ever risen close to the level of the house or that this was a perceived risk.

Neither party produced a copy of the LIM for the property so it was not possible to determine what information had been available to the landlords at the time of purchase. The house appears to have been built in the 1990’s and there is no suggestion that the proper consents were not obtained. The house was located in very close proximity to other houses built along Waikumete Stream which were also flooded.

It is not clear what information was available to the landlords prior to this flooding. The Auckland Council GIS Flood Viewer only became available after (and in response to) the Anniversary Day floods and so cannot have been available to the landlords prior to the flooding event.

This was an unexpected and extreme weather event which led to widespread flooding all over Auckland, involving significant transport and infrastructure disruptions, mass evacuations and loss of life and property 2 . The New Zealand Infrastructure Commission Report, “The 2023 Auckland Anniversary Weekend Storm: An initial assessment and implications for infrastructure” described the flooding that occurred as a set of flash floods, unlike Auckland had previously experienced.

There is no evidence that the landlords were aware of such a serious risk of flooding. The Auckland Council GIS Flood Viewer shows that a considerable number of properties are now recorded as being in a flood plain. Even if the landlords had been aware of this fact (and there is no evidence that they were) I do not consider that the landlords were required to take any steps. While there are often specific requirements for new build properties in flood plains, such as raised flooring, there is currently no requirement for landlords (or any property owner) to upgrade an existing property unless required to do so by law.

Accordingly, on the basis of the available evidence, I find that there has been no breach of the landlords’ obligation to repair and maintain. Did the landlords comply with relevant enactments in relation to buildings, health and safety?

After the flooding the tenancy property was initially “white stickered” pending further assessment by Auckland Council. There were four possible outcomes from this assessment: a. Risk category 1 – Property does not meet threshold for intolerable risk to life 2 Auckland Flood Response Review, Independent, External Review of Events, January 27 – 29 January 2023 (Bush International Consulting) at page 12 b. Category 2C – Community level scheme to reduce the fisk of future weather events c. Category 2P – Property specific measures to reduce the risk of future weather events d. Category 3 – Property meets the threshold for intolerable risk to life. Property purchase required to reduce the risk of future weather events.

Where a property is assessed as being a risk category 2P a landlord will likely be under any obligation to repair and upgrade the property to comply with all relevant laws.

There was no evidence however that this property ever received such an assessment during the tenancy.

In this case the property was then “orange stickered” when Auckland Council assessed this property in December 2023 as being category 3. The landlords would have been in breach of their obligations if they had tenanted the property after that date 3 .

The landlords did not wait until that date however and responsibly ended the tenancy as soon as it was flooded and it was clear that it was no longer habitable.

There is no evidence that the landlords did not comply with relevant enactments in relation to buildings, health and safety. Outcome

I acknowledge the devastating impact that this flood has had on the tenants. They have lost their home and together with it their sense of safety and wellbeing, their pets and many treasured possessions.

Having considered all of the evidence however I do not consider that the tenants’ loss can be attributed to any breach by the landlords of their obligations.

The tenants’ claim for compensation on the basis of a breach of section 45(1) RTA is therefore dismissed.

Are the tenants entitled to a refund of rent?

As part of their claim for compensation the tenants seek refund of rent for the period while they were displaced under section 59 RTA. They seek a refund of rent for the period that they were displaced.

Section 59A RTA applies where the premises are destroyed or are so damaged as to be uninhabitable. It provides that: 3 See Auckland Council Category 3 Voluntary Buy-out Support Scheme Homeowner handbook at page 10 a. The landlord may give notice terminating the tenancy of not less than 7 days b. The tenant may give notice terminating the tenancy of not less than 2 days c. The rent shall abate accordingly

Having reviewed the evidence I do not consider that there is any basis to award the tenants a refund of rent. I find this because the evidence shows that the landlords waived the applicable notice period and agreed that the tenancy would end immediately. The tenants paid no further rent from that date. There has been no overpayment. Did the landlords breach the tenants’ quiet enjoyment of the property?

The tenants claimed that the landlords have breached their quiet enjoyment of 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.

This means that a landlord must not unreasonably interfere with the tenant’s use of the property. Breaches might include such things as turning up at the property unannounced, attending at the property frequently or calling or messaging the tenant more than necessary 4 .

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.

The tenants said that that the very fact that they were living in a dangerous and flood prone property meant that the landlords had breached their quiet enjoyment of the property. They also referred to the difficult circumstances they experienced following the flooding.

There was no evidence that the landlords had interfered with tenants’ use of the property which would amount to a breach the purposes of section 38 RTA.

The tenants did not allege any interference with their use of the property in the aftermath of the flooding, which might lead to a breach of the landlord’s obligations 5 . 4 See for example Fraser & Or v Neville John Neems as trustee for the Neville John Neems Family Trust [2024] NZTT 4694190

The tenants have not proved any breach by the landlords of their obligation not to interfere with the tenants’ reasonable peace, comfort or privacy.

The tenants’ claim for compensation on this basis is dismissed.

Are the tenants entitled to an award of exemplary damages?

As there has been no breach by the landlords the Tribunal would not have considered making an award of exemplary damages.

However I note for completeness that even if a breach had been proved no award could have been made, as the tenants’ application for exemplary damages was filed out of time (more than 12 months after the alleged unlawful act (see section 109(2) RTA)). Filing fee and name suppression

The tenants have not been the successful party and so I have not reimbursed the filing fee.

Neither party sought an order for name suppression pursuant to section 95A RTA.

Reasons