Tenantcheck Insights · Case study
Tenancy Tribunal case 5333039 — Exemplary damages at 5496A State Highway 35, Omaio, RD 3, Opotiki 3199
Published 2 February 2026 · Application 5333039
Tenant favoured
- Exemplary damages
At a glance
Key facts from the published tribunal order.
Outcome
Tenant favoured
From published order
Location
Opotiki
Tribunal region
Adjudicator
N Bradley
Dispute themes
Award balance
Gross awards, any bond applied per the order, and the remaining balance payable.
- Gross award
- $6,128.00
- Total balance for Landlord to pay Tenant
- $6,128.00
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
| Claim | Landlord | Tenant | Reason |
|---|---|---|---|
| Compensation: s 45 RTA breaches | $2,000.00 | s 45 RTA breaches | |
| Exemplary damages: s 45 breaches | $2,400.00 | s 45 breaches | |
| Exemplary damages: unlawful termination s 60AA | $1,500.00 | unlawful termination s 60AA | |
| Filing fee reimbursement | $28.00 | Filing fee reimbursement | |
| Compensation: s 13A tenancy agreement breach | $200.00 | s 13A tenancy agreement breach | |
| Net award | $6,128.00 | ||
| Total payable by Landlord to Tenant | $6,128.00 |
Claims and awards for application 5333039 — net $6,128.00 NZD. Verify on MoJ.
Compensation: s 45 RTA breaches
- Amount
- $2,000.00
- Awarded to
- Tenant
- Reason
- s 45 RTA breaches
Exemplary damages: s 45 breaches
- Amount
- $2,400.00
- Awarded to
- Tenant
- Reason
- s 45 breaches
Exemplary damages: unlawful termination s 60AA
- Amount
- $1,500.00
- Awarded to
- Tenant
- Reason
- unlawful termination s 60AA
Filing fee reimbursement
- Amount
- $28.00
- Awarded to
- Tenant
- Reason
- Filing fee reimbursement
Compensation: s 13A tenancy agreement breach
- Amount
- $200.00
- Awarded to
- Tenant
- Reason
- s 13A tenancy agreement breach
Net award
Tenant $6,128.00
Total payable by Landlord to Tenant
Tenant $6,128.00
Dismissed claims
- Property Damage — RENT RECIEPTS
- Smoke Alarms — RETALIATORY TERMINATION NOTICE 111.On 4 August 2025 the landlord emailed the tenant saying she would be happy to terminate the tenancy and she gave the tenant…
Claim types — money lines allowed on this order
Order
- The landlord must carry out the following work to the premises, which must be completed by 1 June 2026: a. the landlord is to arrange a suitably qualified and registered builder to undertake a healthy homes standards assessment, complete all the necessary work required to reach healthy homes compliance and provide the tenant with a Healthy Homes compliance statement (s 13A (1C) RTA.).
- The landlord must carry out the following work to the premises, which must be completed by 1 April 2026: a. the landlord is to arrange a suitably qualified plumber or water tank specialist to assess whether the system for collecting and storing water is adequate for this premises and ensures compliance with the Drinking Water Standards; and undertake any repairs/ improvements recommended by that plumber or specialist.
- Te Owai Gemmell must pay Fiona Teresa Eru $6,128.00 immediately, as calculated in the table below:
- The balance of the claim is dismissed
Reasons
- Both parties attended the hearing held in Whakatane on 23 January 2026.
- The tenant had support people attend the hearing with her. The landlord was supported and at times represented by her son, Benjamin Gemmell, and her husband, Mr Gemmell gave evidence. Mr Gemmell’s recollection of some event’s differed from the landlord, and he struggled to recall some matters, therefore I have largely relied on the information provided from the landlord. The tenant also filed witness statements from her husband and others, but they did not give evidence at the hearing, therefore I have taken that into account when assessing the weight that should be given to their evidence.
- The tenancy commenced on 19 August 2019 and is ongoing. There is reference in the evidence provided to a whanau trust and this property being a papakainga. Neither party suggested that the Tribunal did not have jurisdiction, and I note that the parties have contracted in to the RTA by using the standard tenancy agreement provided on the Tenancy services website. 1 .
- The tenant has brought claims in respect of the tenancy agreement, the state of the premises and that there is non-compliance with a number of the landlord’s obligations under s 45 RTA and that the landlord gave to attempted to give the tenant an unlawful or retaliatory termination notice.
ISSUES
- The issues for determination are: a. Did the landlord fail to ensure the tenancy agreement is in writing, signed, and provided to the tenant? b. Did the landlord fail to give receipts for rent? 1 See section 8 RTA c. Did the landlord fail to provide the insurance policy following the tenant’s request? d. Did the landlord fail to maintain the premises? e. Did the landlord fail to provide an adequate means for the collection and storage of water? f. Did the landlord fail to comply with their obligations with respect to Healthy Homes Standards (HHS) and/or related requirements in respect of buildings, health, and safety law, including with respect to smoke alarms? g. Did the landlord serve the tenant with a retaliatory or unlawful termination notice? h. If any breaches are proven, should work orders be made or exemplary damages and compensation be ordered?
- The tenant withdrew claims in respect of the exterior cladding and exterior carport.
RELEVANT LEGAL CONSIDERATIONS
- The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, 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 likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
- As noted by the District Court in Kaipo v Clarke & McCarthy 2 , in practical terms this means 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. Compensation
- The Tribunal may award compensation to a party for losses arising from a proven breach or breaches by the other party of their statutory responsibilities 2 Kaipo v Clarke & McCarthy (DC) TT233/02. under the RTA. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. In Birch v Otautahi Community Housing Trust 3 the District Court confirmed that the Tribunal must consider the nature, duration and effect of the breach when deciding to award compensation. Exemplary damages
- Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell 4 the Court of Appeal 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. Before the Tribunal may award exemplary damages, the Tribunal must take into account the intent of the person in committing the unlawful act, the effect of the unlawful act, the interests of the landlord or the tenant against whom the unlawful act was committed, the public interest, and whether it is just to make the award. 5
- Intention is proved where the party turns their mind to the unlawful act and deliberately sets out to commit the act. It is unnecessary to prove that the party intended to act unlawfully, it is enough that they intended to commit the act which is in fact unlawful. The same principle applies where the party fails to carry out a legal requirement. Even if the party is unaware of the particular obligation they have failed to perform, confusion, lack of knowledge or ignorance of the law is no defence. 6 A party is deemed to know the law, and therefore failure to perform the obligation is considered intentional. Also, if the party is wilfully blind to the factual circumstances that give rise to an unlawful act, this may also be sufficient to prove they acted intentionally.
- Exemplary damages must be ordered on a global basis, rather than for each and every breach separately under the same provision of the RTA. 7 The 3 Birch v Otautahi Community Housing Trust [2020] NZDC 17667. 4 Auckland City Council v Blundell [1986] NZLR 732(Cooke P) 5 Section 109 of the RTA. 6 TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 7 Ministry of Business, Innovation and Employment v Hillis Shearing Limited [2024] NZDC 27583 Tribunal’s usual approach to exemplary damages is to award one third of the maximum unless there are aggravating or mitigating factors in play. 8
- A party may not apply for exemplary damages later than 12 months after the date of commission of the unlawful act or no later than 12 months after the termination of the tenancy if the breach relates to the landlord’s obligations in respect of the bond and record keeping. 9
TENANCY AGREEMENT
- The tenant claims the landlord failed to provide a complete and fully signed tenancy agreement. A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. 10 Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. 11
- Every tenancy agreement must include prescribed minimum information set out in the RTA. 12 Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. 13
- The tenant says the tenancy agreement was not completed properly and only included the landlord’s address and bank account. She says it did not include all the information the RTA requires and was not fully signed. The landlord accepted that the tenancy agreement was incomplete but disputed the claim for exemplary damages.
- On reviewing the evidence, I find the landlord has provided a tenancy agreement in writing and it is partly signed. The tenancy agreement has the minimum information included, however I have been unable to clarify who completed what in the tenancy agreement, as while the landlord said she completed it, she also thought she had not provided a tenancy agreement, and I consider her recollection was unclear. I am left uncertain as to who completed the tick boxes in the insulation statement. In any event the insulation statement has not been fully completed and signed.
- I therefore find the landlord has committed an unlawful act, by failing to provide a signed and complete insulation statement.
- The landlord must also include in the tenancy agreement a statement, made and signed by the landlord that, on and after the commencement of the tenancy, the landlord will comply with the HHS and include the information prescribed by HHS. The tenancy agreement does not appear to include a full 8 Wellington Property Management Ltd v Hardie [2022] NZTT 4399281 4374781. 9 Section 109 2 RTA. 10 See section 13 RTA. 11 See section 13(4) and Schedule 1A RTA. 12 See section 13A RTA, 13 See section 13A(1AAA) RTA, HHS compliance statement; however, this requirement came in force from 1 December 2020, therefore at the time the tenancy commenced this was not an obligation on the landlord.
- However, as the claim for exemplary damages is outside the 12 months from the commencement of the tenancy, I consider the time for filing the claim for exemplary damages has expired. The claim for exemplary damages respect of the tenancy agreement is dismissed.
RENT RECIEPTS
- The tenant claims the landlord has not issued a receipt for rent. A landlord must give a written receipt immediately for any rent paid by cash. 14
- On the written request of the tenant, the landlord must also give to the tenant a written statement of the period to which any payment of rent relates (a rent summary). 15 Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. 16
- The landlord is not required to provide a receipt for rent where rent is paid out of the tenant’s bank account or by way of deduction from the tenant’s pay or benefit and paid into the landlord’s bank account. 17
- The tenant acknowledged that she has not paid cash for rent. The tenant did not suggest she had requested a rent summary. I therefore find that the tenant has not proven that the landlord failed to give receipts for rent and this claim is dismissed.
INSURANCE INFORMATION
Insurance policy
- The tenant claims the landlord has not provided a copy of the insurance policy for the premises.
- A tenant can request the landlord provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. 18 Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. 19 14 See section 29(1) and (2)(a) RTA. 15 See section 29 (3) RTA. 16 See section 29(5) and Schedule 1A RTA.. 17 See section 29 (4) RTA 18 See s 45(2B) and (2C) RTA. 19 See section 45(2D) and Schedule 1A RTA.
- The landlord said that the property was not insured. This obligation to provide an insurance policy is in respect of an insured property. The landlord cannot provide an insurance policy where no insurance policy exists, for this reason this claim is dismissed. Insurance statement
- For completeness I address the lack of an insurance statement in the tenancy agreement.
- From 27 August 2019 the landlord must include in the tenancy agreement the information about insurance of the premises stating if the premises are not insured, and if the premises are insured, a statement setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and informing the tenant that a copy of the policy is available to the tenant on request (unless the policy has already been provided to the tenant) (the insurance statement) 20
- Where a tenancy agreement was entered into before 27 August 2019 (as it was in this case) the tenant may request the insurance statement and the landlord must, within a reasonable time after receiving the request, provide the information in writing to the tenant. The landlord must inform the tenant if the insurance position changes. 21
- Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. 22
- The obligation to provide an insurance statement was not in place when the tenancy commenced.
- The tenant has said she requested an insurance policy, and the landlord has said they advised the tenant they do not have insurance.
- However, there was a lack of documentary evidence about the request (such as the date of the request), whether an insurance statement was requested or response, and as it is for the tenant to prove this claim I find that tenant has not proven the landlord has committed an unlawful act with respect to the insurance statement or provision of insurance information. Accordingly, the claim in respect of the insurance information is dismissed.
COMPENSATION
20 Section 13A (2) RTA. 21 Section 13A (3) and (4) RTA. 22 See section 13A (1F) RTA.
- Even though the tenants have not specifically claimed compensation in respect of the tenancy agreement breaches I consider that it is open to me to award compensation for the landlord’s breach. 23 The tenant has been disadvantaged by not having an insulation statement. I consider the tenant should be compensated for this and consider $200 reasonably reflects the nature, duration and effect of the breach. THE LAW – LANDLORD’S RESPONSIBILITIES
- Section 45(1) of the RTA sets out several of the landlord’s obligations. I have set out the s 45 (1) RTA in full below: (1) The landlord shall— (a) provide the premises in a reasonable state of cleanliness; and (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and (ba) comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A; and (bb) comply with the healthy homes standards; and (bc) [Repealed] (bd) comply with all requirements in respect of contaminants imposed on the landlord by regulations made under section 138C(3)(c); and (c) comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises; and (ca) if the premises do not have a reticulated water supply, provide adequate means for the collection and storage of water; and (d) compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where— (i) the state of disrepair has arisen otherwise than as a result of a breach of the tenancy agreement by the tenant and is likely to cause injury to persons or property or is otherwise serious and urgent; and (ii) the tenant has given the landlord notice of the state of disrepair or made a reasonable attempt to do so; and (e) take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.
- Breaching any of the obligations set out in s45 (1)(a)-(ca) RTA is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $7200.00. 24
FAILURE TO MAINTAIN
- The tenant claims that the landlord has breached their obligations to provide and maintain the premises in a reasonable state of repair.
- The extent of the landlord’s obligation to provide and maintain the premises in a reasonable state of repair was considered in the decision of Barfoot & Thompson v Casey. 25 The Court noted that there was no absolute liability or 23 Maria Cavanagh v Kāinga Ora-Homes and Communities [2022] NZDC 7003. 24 See section 45 (1A) RTA and Schedule 1A RTA. 25 Barfoot & Thompson v Casey CIV-2005-004-001762, 7 November 2007. responsibility obligation, so the landlord does not have to foresee a latent and unobservable defect before it causes damage. The tenant has to notify the landlord as soon as possible after discovery of any damage to the premises, or of the need for repair. 26 Once notified, the landlord is obliged to repair within a reasonable time.
- In Collins v Professionals Hutt City Ltd 27 the Court stated: [15] I consider that the obligation of the landlord, under s.45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances; and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem may be.
- I note that the tenancy commenced on 19 August 2019 and the tenant’s application was filed on 25 August 2025. Claims for money orders cannot be made for events outside of the last six years of the tenancy. 28
WORK ORDERS
- The tenant claims that the landlord has not ensured the home is HHS compliant, that the water supply is not adequate, and the taps are damaged and require repair or replacement. The tenant wants these problems fixed.
- Under section 45(1)(a) - (ca) RTA (set out above), 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 the s 45 obligations, it may make an order for the landlord to carry out the work. 29
- 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. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. 30
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. 31 26 Section 40(1)(d). 27 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2010 at [15]. 28 The Limitation Act 2010. 29 See section 78(1)(e) RTA. 30 See sections 78(2) and 78(2AA) RTA. 31 See sections 78(2AAB) and 78(2AAC)(b) RTA.
- I will address the claim for work orders under each respective claim.
THE CLAIMS
- I note here that there is a process in place so that tenants do not have to put up with maintenance failures. The process is not to wait until the end of the tenancy and claim compensation for years of neglect or neglect from years prior. The process is to give a 14-day notice to the landlord to remedy the breach and then claim in the Tribunal if the problems are not rectified
- I also note where any party to a tenancy agreement breaches any of the provisions of the agreement or of the RTA, 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. This means that the tenant must limit their compensation claims by promptly requesting remedial work and if necessary, applying to the Tribunal for assistance. 32 Cleaning/repairing driveway to access property –$1000.00 claimed
- The tenant claimed compensation for clearing and repairing a driveway before the tenancy commenced. I find that the time for filing this claim has expired and for this reason it is dismissed. However, if I am wrong in that finding I consider that the tenant has not provided sufficient evidence to support a claim for time for undertaking the work claimed to have been done by the tenant (no time records were provided) and I also consider that tenant did not mitigate their loss by serving the landlord notice to remedy the breach in respect of maintenance of the drive way. Tile wall at back & side of stove to stop heat transfer -$200.00 claimed
- The tenant claims $200 for installing tiles on the oven walls. These tiles would amount to a fixture, renovation or addition to the premises. The tenant shall not affix any fixture, renovation or addition except in accordance with the tenancy agreement or prior written consent of the landlord. 33 The tenant says she did have consent from the landlord to add the tiles but there was no discussion that the landlord would pay the tenant for adding the tiles. I am dismissing this claim because it relates to an expense incurred outside of the limitation period and no invoices were provided in support of this claim and there was no agreement for the tenant to be reimbursed for adding the tiles. Replace rear door lock - $40.00 claimed
- The tenant said she had to replace a lock for the rear door at the commencement of the tenancy. The landlord did not disagree that the tenant 32 Section 49 RTA – Mitigation of damage or loss. 33 See s 42 RTA may have replaced a lock. However, I am dismissing this claim as it relates to an expense occurred outside of the limitation period and no invoices or receipts were provided in support of this claim. Cleaning property of trees/branches- $1000.00 claimed
- The tenant claims $1,000 for having to clear the property of trees and branches in 2019 or 2020. The tenant was unsure of dates the land was cleared and did not provide any photographs of what required clearing. No time records or invoices or receipts were provided in support of the claim. The landlord opposed the claim. I consider the tenant has provided insufficient evidence in support of this claim and it is dismissed. Gas stove - $600 claimed
- The tenant claimed $600 to compensate her for purchasing an oven at the commencement of the tenancy. The tenant said that she was aware the property would not be provided with a working oven at the commencement of the tenancy and accepted a cooking device was offered by the landlord. I also understand an oven was left at the premises and there was a dispute about the extent to which it was working. The tenant provided photographs of the oven left at the premises at the commencement of the tenancy and it appears unlikely it was in working order.
- The landlord is required to ensure that there shall be in each kitchen or kitchenette adequate means of preparing and cooking food, both by boiling and by baking. 34 The landlord disputed the claim on the basis an oven was installed in December 2025 (that is a month before this hearing).
- The tenant did not provide any invoice in support of the claim. For this reason, I consider the claim is not proven and the claim is dismissed. I also consider the tenant failed to mitigate her loss by addressing this issue at the commencement of the tenancy and I would have dismissed the claim for this reason also. Drapes, curtains and tracks- $2,000.
- The tenant claims $2000 for replacing curtains at the commencement of the tenancy. She says the curtains provided at the start of the tenancy were in poor condition. The tenant said she intends to take the curtains she has put in the tenancy with her at the end of the tenancy. The tenant did not provide any photographs of the curtains at the start of the tenancy or any receipts for the curtains she purchased. I find on the evidence provided that the tenant has not proven the landlord has breached any obligation with respect to the curtains and accordingly, the claim in respect of the curtains is dismissed. 34 See s 7 Housing Improvement Regulations 1947 Taps
- The tenant says the bath taps and the laundry taps require repair or replacement. The tenant says the bath taps have seized, and both the bath taps and laundry taps have poor water supply. The tenant seeks that the landlord replace the bath taps and laundry taps.
- On reviewing the photographs of the bath taps I note that they have mineral build up that may cause them to seize however I find there is insufficient evidence that the taps do not work appropriately and therefore I find the tenant has not proven this claim and it is dismissed.
- I address the issue of the water quality below.
WATER SUPPLY
- A landlord must provide an adequate means for the collection and storage of water if there is no reticulated supply (council supplied mains water). 35
- A landlord must also comply with any relevant enactment in relation to buildings, health, and safety, such as those contained in the Housing Improvement Regulations 1947 (HIR), and the Building Act 2004, which set out minimum standards for drinking water in residential properties. 36 A property must have an approved sink with a tap connected to an adequate supply of potable water. Potable water is water that is safe to drink and complies with drinking water standards. 37 The drinking water standards 38 state that the maximum acceptable level of E-coli in drinking water is less than 1 in 100ml sampled (less than 1 MPN/100ml). Every bathroom must contain an approved bath or shower with an adequate supply of wholesome water. 39 A building is deemed unsanitary if it does not have a supply of potable water (as defined above) that is adequate for its intended use. 40
- Landlords must therefore provide a safe and continuous water supply into the tenancy premises, ensure it meets Drinking Water Standards, and maintain the necessary infrastructure (e.g. roofs and guttering). For tank water, this includes providing a properly sized and maintained tank with no leaks or contamination and ensuring any pump system is functioning correctly. The water supply may require filtration (like a UV filter) to meet the Drinking Waters Standards. The landlord should provide the tenant with written instructions on how to operate the tank water system. 35 See section 45 (1) (ca) RTA 36 See section 45 (1)(c) RTA 37 Regulation 2 and & HIR. 38 The HIR defines drinking water standards as standards made under s 47 Water Services Act 2021 (the “WSA”). The Water Services (Drinking Water Standards for New Zealand) Regulations 2022, are made under s47 of the WSA. Drinking Water Standards for New Zealand 39 Regulation 9(2) of the HIR 40 Section 123 (1)(b) of the Building Act 2004
- The District Court has said that as the landlord’s duty is a statutory one, it is not necessary for the tenant to give notice if the tenant considers that there has been a breach. It is incumbent on the landlord to ensure that the premises complies with all health and safety and Building Act requirements on an ongoing basis. 41
WATER SUPPLY IN THIS CASE
- The tenant says the current water supply is inadequate. She says the tank is not big enough, the dam water quality which feeds the tank is unsafe and there is no filtration system.
- The tenant seeks that the landlord provide adequate means for the collection and storage of water by providing a 30,000-litre water tank. The tenant provided photographs of the dam which is their only direct water source.
- In respect of the poor water supply the tenant claims compensation for installing the following items at the start of the tenancy: a water pump and fittings ($700 claimed), an ajax valve for the hot water cylinder ($159 claimed), a hot water shower booster pump ($129 claimed), a butol pipe and fittings ($100 claimed). I am dismissing these claims as no invoices or receipts were provided in support of the claims and the claims appear to relate to the period 19 – 25 August 2019, the tenant could not specify a date, and the claims potentially relate to expenses incurred outside of the limitation period.
- The tenant also claims compensation for having to obtain water from Te Kaha ($7800.00 claimed) and cleaning the water tank ($600.00 claimed).
- The tenant also claimed reimbursement of the water testing fee. This claim was raised at the hearing, and I declined to allow that claim to be heard as it was not submitted before the hearing.
- The tenant has had a water sample undertaken on 18 November 2025 and provided a Certificate of Analysis from the Bay of Plenty Regional Council which confirms the water sample has an E.coli level that does not comply with the Drinking Water Standards. The test result was unchallenged by the landlord.
- I accept that given the lack of a filtration system and the water testing results that the water supply likely does not comply with Drinking Water Standards. However, there is no evidence of water testing undertaken prior to November 2025 therefore I consider the tenant has not proven that the water was unsafe prior to the testing date. 41 Sutherland v Ericson [2025] NZDC 7526.
- The landlord says in respect of the claim for travel to get drinking water that the amount claimed is excessive and she was unaware the tenant was travelling for drinking water.
- I will address the claim for compensation in respect of the water supply under the Compensation heading below.
- The parties agreed the water tank holds 4000 litres. I am not satisfied on the evidence provided that this tank size is insufficient for the property, noting that the tenant has not raised this concern for the duration of the tenancy in writing, on the evidence provided, until late 2025.
- At the time of the hearing the landlord has obtained quotes for replacing the tank and for it to be cleaned.
WORK ORDERS IN RELATION TO WATER SUPPLY
- The landlord did not specifically agree to address the issue with respect to the water supply. No work orders are made to upgrade the system. However, In the context of this tenancy, the water supply should be assessed, and improved, if necessary, to ensure an adequate water supply is provided. I have therefore made an order for the water supply to be assessed by a plumber and/or water tank specialist and any recommendations must carried out by the landlord.
- It seems likely that a plumber or water tank specialist will be best placed to assess the appropriate tank size and filtration options for this premises.
HEALTHY HOMES STANDARDS
- The RTA requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) 42 The HHS provides for a minimum set of requirements for residential tenancies in relation to heating, insulation, ventilation, draught stopping, and moisture ingress and drainage. Compliance dates for the HHS vary depending on the tenancy: All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
- I note here that the obligation to comply with the HHS in this case commenced on 1 July 2025.
- The tenant claims that the landlord has breached their obligations as it relates to the HHS. 42 See Section 45(1)(bb) of the RTA
- The tenant submitted a “homes performance assessment” dated 10 May 2023 which the tenant says was organised by the landlord and assesses the state of the premises in respect of the HHS.
- The report has been completed by an organisation known as “Sustainability options”. It is not clear whether the report writer is a certified builder. In any event the findings in the report were largely unchallenged by the landlord.
- The tenant advised that the only issue in that report that had been remedied is the guttering and downpipes. Heating standard:
- The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
- The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/ .
- The HHS does provide exemptions in specific circumstances. Heating standard – this case
- The tenant said that there was no qualifying heater in the premises. The Sustainability options report recommends heating in installed and I infer from the report that there is no fixed heating in the home. No photographs were taken from inside the home. The landlord accepted did not dispute that the premises did not comply with the HHS. Heating prior to the HHS compliance date
- Prior to the HHS heating standard coming into effect the landlord’s obligation to provide heating is contained in the HIR. HIR Regulation 6 provides that every living room shall be fitted with a fireplace and chimney or other approved form of heating. Not only has the landlord not complied with the HHS heating standard in the required timeframe, the failure by the landlord to provide any heating from the commencement of the tenancy is a breach of the HIR and an unlawful act. Insulation standard:
- The insulation standard requires that the premises have qualifying insulation in the ceiling cavity, and under the floor if the floor is a suspended floor. To be considered ‘qualifying insulation’ the insulation must meet a minimum R value. The minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
- The insulation must also be in a reasonable condition. The HHS does provide an exemption to the required for insulation in specific circumstances for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated. Insulation standard – this case
- The Sustainability options report indicates that the ceiling insulation no longer reached 120mm, thickness across the ceiling. However, the Sustainability report does not provide any information about when the insulation was likely installed and the R-value of the insulation. There is no written information about the underfloor insulation. It is for the tenant to prove that the insulation was non-compliant with the HHS and in respect of the insulation HHS I consider insufficient evidence has been provided for me to find that the insulation is non-compliant. Insulation prior to HHS compliance date
- From 1 July 2019, all residential premises must be insulated to a minimum standard which is required under the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (the SAI Regulations). The SAI Regulations require ceiling and underfloor insulation. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in a reasonable condition. Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3. There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
- The tenant said the insulation did not meet the minimum requirements. As noted above, there is however insufficient evidence of the date of insulation and R value therefore I find there is insufficient evidence of non-compliance with the SAI Regulations. Ventilation standard:
- 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. Ventilation standard – this case
- The tenant said there was no kitchen and bathroom extractor fans. This is recorded in the Sustainability options report. This was undisputed by the landlord. Draught Stopping Standard:
- 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. Draught Stopping Standard – this case
- The tenant said the property did not comply with the draught stopping standard as there were unreasonable gaps and holes. The tenant provided photographs of the draughts in the ranch slider and a broken window. The Sustainability options report confirms that draught stopping was required. This was unchallenged by the landlord. Moisture Ingress and Drainage Standard:
- The moisture ingress and drainage standard require that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances. Moisture Ingress and Drainage Standard – this case
- The tenant said there was inadequate guttering and drainpipes but that this has been remedied. The tenant said that ground vapour barrier is required, however that is not stated in the Sustainability report. I therefore find that there is insufficient evidence that the landlord has failed to comply with the moisture ingress and drainage HHS. Outcome
- I therefore find that the landlord has not complied with the HHS in respect of heating, ventilation and draught-stopping.
WORK ORDERS IN RELATION TO HHS
- In respect of the HHS the tenant seeks that the landlord undertake any work to ensure the premises complies with the HHS. The landlord agreed to have an HHS assessment undertaken, undertake all work required by that assessment to obtain compliance with the HHS and provide an HHS compliance statement by 1 June 2026. Accordingly, I have made an order by consent for this to occur.
COMPENSATION
- The tenant claimed $20,000 for general suffering arising from the landlord’s breaches under s 45 of the RTA. I consider it appropriate to make one global order for compensation to reflect the impact of the breaches on the tenant. I consider it would be foreseeable that the tenant would experience stress and suffering in the circumstances.
- In assessing a fair level of compensation, I n o t e the tenant has experienced inconvenience during the tenancy having a home that was not healthy and warm. The impact of this would have been moderate.
- The tenancy commenced in 2019 and the breach of the landlord’s obligations with respect to heating commenced at the start of the tenancy. The landlord was required to ensure compliance with the HHS from 1 July 2025. The period from 1 July 2025 to the hearing date was 29 weeks. In respect of the water supply breach, that matter was formally raised by the 14- day notice on 4 August 2025 and the time to the hearing date was 24 weeks.
- In taking into account the above nature, duration and effect of the breach I consider $2,000 reasonably compensates the tenant for the landlord’s breaches of s 45 of the RTA. The balance of the claim for compensation is dismissed.
EXEMPLARY DAMAGES
- The tenant seeks exemplary damages in relation to her claims under s 45 RTA. I consider the landlord should have been aware of her obligations in respect of the HHS, heating and the water supply. A lack of knowledge or ignorance of the law is no excuse. The effect of the noncompliance was that the tenant lived in an unhealthy home. It is in the interests of the tenant to receive exemplary damages for unlawful acts committed against her. There is a public interest in ensuring landlords meet their obligations under s 45 of the RTA. It is just to award exemplary damages in this case.
- The Tribunal must take a global approach to exemplary damages meaning one order in respect of all breaches under s 45 RTA. Having regards to the above factors I consider an award of exemplary damages of a third of the maximum is appropriate and accordingly $2,400.00 is ordered.
SMOKE ALARMS
- Section 45(1)(ba) of the RTA requires that landlords comply with all requirements in relation to smoke alarms made under section 138A. The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (SAI Regulations). The SAI Regulations set out the following requirements: a. Landlords must ensure qualifying smoke alarms are installed and operational. b. Smoke alarms must be installed in every sleeping space, or within 3 metres of the entrance to the sleeping space, and in each level of a multi-level dwelling. c. All new smoke alarms must be photoelectric, have a battery life of at least eight years or be hard-wired, be installed according to the manufacturer’s instructions, meet international standards, be in full working order, and have their expiry date displayed. d. Existing smoke alarms do not need to be replaced if they are in full working order and have not passed their expiry date
- The tenant has raised that the landlord did not ensure qualifying smoke alarms were installed. In respect of this claim, she seeks exemplary damages. The landlord accepted that the smoke alarms may not have been qualifying at the commencement of the tenancy and were not installed but provided to the tenant to install. I therefore find that the landlord has committed an unlawful act.
- The obligations that the landlord has breached with respect to installing smoke alarms arose at the commencement of the tenancy in 2019. I consider there is insufficient evidence about whether or not the smoke alarms may be non-compliant. The tenant has not provided photographs of the smoke alarms. I therefore consider the ongoing situation with respect to smoke alarm compliance is uncertain. The tenant filed the claim in 2025. I consider the time for claiming exemplary damages in respect of the installation of the smoke alarms has expired. For these reasons the claim in respect of the smoke alarms is dismissed.
RETALIATORY TERMINATION NOTICE
- On 4 August 2025 the landlord emailed the tenant saying she would be happy to terminate the tenancy and she gave the tenant two weeks’ notice to move out and on 25 August 2025 the landlord verbally gave the tenant a notice ending the tenancy and or alternatively she would put the rent up (which was also intended to make the tenant vacate). The tenant claims the landlord’s notice to terminate the tenancy is retaliatory and/or unlawful. The tenant says the landlord apologised. The Law – Retaliatory termination notice:
- 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 any relevant Act, or by any complaint against the landlord. 43
- The notice given by the landlord terminating the tenancy must also comply with the requirements of s 51 of the RTA which provide for prescribed notice periods and standards for the termination notice. 44 If the tenant makes the application within 28 working days after receiving the termination notice, the tenant may at the same time apply for an order declaring the notice to be of no effect. 45 The Tribunal need not declare the notice to be retaliatory and of no effect if the Tribunal is satisfied that, the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. 46
- 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. 47
- The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right or making a complaint, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right or making a complaint.
- The Tribunal in Easton v Marks 48 considered the meaning of the verb “motivate”. It considered the Webster’s dictionary definition “to furnish with a motive or motives; to give impetus to; to insight; to impel” and held that the landlord was not incited or impelled by the tenant’s actions. The Tribunal in that case noted that: “It is one thing to say that an owner of a property has grown somewhat tired of his property being tenanted to persons, it is another thing to say that the tenants gave impetus to, or incited, or impelled the owner to give the notice to quit.”
- A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 49 This case:
- The termination notice in this case did not comply with section 51 RTA; in that it did not provide the minimum notice period required by a landlord giving notice to a tenant. I find that the termination notice is not retaliatory and dismiss this claim. 43 See section 54(1) –(2) RTA 44 See section 54(1) RTA 45 Section 54 (3) RTA 46 See section 54 (5) RTA 47 See section 54(2), (6) and Schedule 1A Residential Tenancies Act 1986. 48 Easton v Marks Auckland TT 229/87, 27 May 1987 49 Kerr v Woodman DC Porirua MA244/88, 3 November 1988
UNLAWFUL TERMINATION
The Law – Unlawful termination
- A landlord must not give notice to terminate a tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so. 50 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 $6500.00. 51 The time for deciding if there was an intention by the landlord to give notice knowing they are not entitled to do so is when the notice was given. This case:
- In this case the landlord said she would be happy to terminate the tenancy and gave the two weeks’ notice. I am satisfied that the landlord’s intentions in the email and by her words to the tenant was an intention by the landlord for the tenancy to terminate. The tenant says she told the landlord she would not be vacating. The landlord says no steps were taken to have the tenant vacate and says exemplary damages would be disproportionate.
- Landlords are expected to be aware of the periods of notice they are required to provide tenant’s with when terminating a tenancy. It must therefore be concluded that the landlord’s notice was given with the landlord being aware that she could not terminate on such short notice. I find the landlord has committed an unlawful act.
- I consider the breach was intentional and the effect of the breach was that the tenant felt intimidated. There is a strong public interest for tenants not to have their tenancies terminated without proper notice. It is in the interests of the tenant to receive exemplary damages for the unlawful act committed against her. 52 I consider it would be just for the tenant to receive exemplary damages.
- I order the landlord to pay an amount of $1,500 which is below a third of the maximum to recognise that the tenancy did not terminate as a result of the termination notice.
ORDER THAT PREMSIES NOT BE RENTED
- The tenant has asked for the Tribunal to order that the landlord not rent the premises until it is HHS compliant. I do not consider there is provision in the RTA to make an order on the terms sought by the tenant and accordingly this claim is dismissed. 50 See section 60AA and Schedule 1A RTA. 51 See section 60AA and Schedule 1A RTA. 52 See section 109(3) Residential Tenancies Act 1986.
- The Tribunal can however make an order restraining a party from committing further unlawful acts if satisfied it is in the public interest to do so. 53 The Tribunal would generally make such an order where there is a pattern of breaches brought to the Tribunal. In this case I have made work orders which I consider sufficiently addresses the public interest in ensuring a safe and healthy home is provided by the landlord. I do not consider a restraining order is warranted in this case.
FILING FEE
- Because the tenant has been partly successful with the claim, I have reimbursed the filing fee. 54
SUPPRESSION
- Neither party sought name suppression.
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s1, s10, s101, s102, s106, s108, s109, s109(3), s109A, s120C, s123, s13, s13(4), s138A, s138C(3), s13A, s13A(1AAA), s1947, s2, s2016, s2022, s215508, s22, s24, s29, s29(1), s29(5), s37, s38, s40(1), s4000, s42, s43, s45, s45(1), s45(2B), s45(2D), s47, s48, s49, s5, s51, s54, s54(1), s54(2), s58, s60AA, s6iVk, s7, s78, s78(1), s78(2), s78(2AAB), s7oiTZcs, s8, s85BgUQgK, s8zksJJQilJrWCYJj
Key findings
- Dispute theme: exemplary damages
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5333039?
The tribunal order states: The landlord must carry out the following work to the premises, which must
How much money was awarded in case 5333039?
Compensation: s 13A tenancy agreemen…: $200.00 awarded to tenant; Compensation: S 45 RTA Breaches: $2,000.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $28.00 awarded to tenant
What type of tenancy dispute was case 5333039?
The primary dispute was Exemplary damages.
Where can I read the official tribunal order for case 5333039?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13020871-Tribunal_Order.pdf.