Tenantcheck Insights · Case study
Tenancy Tribunal case 5374001 — Exemplary damages at 52B Hiwihau Place, Glenfield, Auckland 0629
Published 22 May 2026 · Application 5374001
Tenant favoured
- Exemplary damages
At a glance
Key facts from the published tribunal order.
Outcome
Tenant favoured
From published order
Location
Auckland
Tribunal region
Adjudicator
M Pollak
Dispute themes
Award balance
Gross awards, any bond applied per the order, and the remaining balance payable.
- Gross award
- $7,570.85
- Total balance for Landlord to pay Tenant
- $7,570.85
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
| Claim | Landlord | Tenant | Reason |
|---|---|---|---|
| Compensation: Breach of quiet enjoyment- noise | $4,542.85 | Breach of quiet enjoyment- noise | |
| Exemplary damages: Breach of quiet enjoyment | $3,000.00 | Breach of quiet enjoyment | |
| Filing fee reimbursement | $28.00 | Filing fee reimbursement | |
| Net award | $7,570.85 | ||
| Total payable by Landlord to Tenant | $7,570.85 |
Claims and awards for application 5374001 — net $7,570.85 NZD. Verify on MoJ.
Compensation: Breach of quiet enjoyment- noise
- Amount
- $4,542.85
- Awarded to
- Tenant
- Reason
- Breach of quiet enjoyment- noise
Exemplary damages: Breach of quiet enjoyment
- Amount
- $3,000.00
- Awarded to
- Tenant
- Reason
- Breach of quiet enjoyment
Filing fee reimbursement
- Amount
- $28.00
- Awarded to
- Tenant
- Reason
- Filing fee reimbursement
Net award
Tenant $7,570.85
Total payable by Landlord to Tenant
Tenant $7,570.85
Claim types — money lines allowed on this order
Order
- Mcgill Solutions Limited As Agent For Sean Hanping Shu & Melody Xiaoqin Yu must pay Giacomo Lizzadro $7,570.85 immediately.
Reasons
- Both parties attended the hearing on 19 May 2026. Cecilia Huang appeared for the landlord and the tenant represented himself.
- The tenant applied for work orders, compensation, exemplary damages and reimbursement of the filing fee following the end of the tenancy on 28 February 2026. At the hearing, the tenant confirmed he withdrew his work order claims as the tenancy has ended.
RELEVANT LEGAL CONSIDERATIONS
- The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). Evidential burden
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
- That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The 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 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 (DC) TT233/02, 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.
- In summary, 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. If any claim is not established to the balance of probability, it must be dismissed.
- The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision. General legal principles in relation to the award of compensation or exemplary damages
- The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. Awards of compensation in the Tribunal are generally modest. When awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach. Factors such as the loss of amenity, stress and inconvenience suffered by the party that has proven the breach are considered when deciding the quantum of any compensation awarded.
- Exemplary damages can also be awarded for breaches listed in Schedule 1A of the RTA, provided the Tribunal is satisfied that the breach was intentional. Exemplary damages are a penalty designed to deter parties from intentionally engaging in the kind of behavioural conduct provided for in Schedule 1A of the RTA. However, section109(2)(b) of the RTA, bars a party from applying for exemplary damages for a breach of the RTA 12 months or more after the date of commission of the unlawful act. TENANT’S CLAIMS Has the landlord breached its section 45(1)(b) and (bb) obligations to the tenant?
- The tenant claims that the landlord has breached its obligations under section 45(1)(b) and (bb) of the Residential Tenancies Act 1986 (“RTA”).
- Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is 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 might be”. 1
- There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
- A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .
- There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
- Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.
- Breaching either or both of these s45(1) 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.
- General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. Did the landlord fail to maintain the premise in a reasonable state of repair in all the circumstances?
- The tenant gave evidence the landlord failed to investigate and repair defects with the property brought to its attention, within a timeframe that is reasonable in all the circumstances. A. House damp, cold and mouldy
- The tenant confirmed, his main concern about the premise was the lack of insulation that he states led to the house being cold, damp, mouldy and noisy.
- Specifically, the tenant provided photographic evidence that shows moisture build up on the windowpanes in the bedroom and lounge and he stated that this moisture build up led to water running down the wall and making the carpet damp in the bedroom as well as causing mould to grow on the roller blinds he had installed, the curtains and on items of clothing stored in the damp wardrobe.
- The landlord claims this moisture, dampness and coldness is the result of the tenant not ventilating the house out regularly and not using the heat pump to dry out the air, thereby allowing moisture to build up on the windows. Further, the landlord confirmed there were no leaks causing dampness, mould or the house to be hard to heat. Additionally, the landlord says the house was empty for weeks after the tenancy ended and there was no condensation on the windows in that time, nor was there any evidence of dampness or mould.
- The tenant stated he regularly had the windows opened and that despite him regularly ventilating the house, it was constantly cold and damp. He also produced evidence that proved the roller binds he purchased new for $1,142.00 and had installed at the start of the tenancy were covered in mould at the end of the tenancy and had to be removed at the end of the tenancy at his cost.
- The tenant confirmed he had the roller blinds custom made, fitted and removed at the end of the tenancy at his own expense, he had never showed the landlord the mould growing on them, he had never asked for the mouldy blinds to be professionally cleaned to remove the mould, nor had he asked for the landlord to reimburse him for the blinds at the time he had them installed However, in his application he was seeking reimbursement for the $1,142.00 he paid for blinds that he would have been unable to take with him to use at his next tenancy as they were custom made to fit the windows at this premise. Because the tenant had not asked for reimbursement for the cost of the custom-made blinds when he had them made and installed and he had not given the landlord the opportunity to have them cleaned at the end of the tenancy so he could take them with hi if he so chose, I dismiss his claim for reimbursement for this cost.
- There is no evidence the tenant specifically raised the dampness and mould issues with the landlord. The evidence shows the tenant repeatedly raised the lack of sound proofing and insulation with the landlord from 31 July 2025, and that part of the insulation complaint was that the house was colder than it would have been if it was insulated and that the lack of insulation was the primary cause of excessive condensation, which directly led to dampness and mould in the bedroom and lounge areas of the house.
- The tenant claims his everyday activities like cooking, showering, and breathing release moisture into the air and despite him opening windows and doors to dry the air out, when warm, moist air comes into contact with cold, uninsulated walls, ceilings, or windows, it cools down rapidly and turns into condensation. He says this continuous moisture buildup created the perfect breeding ground for mould spores to thrive on his blinds and clothing.
- The landlord stated it had looked at the cost of installing an HRV system, after the Council had investigated the tenant’s noise complaint and made some recommendations, including installation of an HRV system, but decided that was an expensive option that would be hard to install and may not solve the condensation and moisture issue fully.
- The landlord stated it never undertook any moisture testing nor did it offer the tenant a dehumidifier as he never conveyed that the condensation was an issue to him, nor did he raise the mould and dampness issue until he made his application to the Tribunal.
- While I accept the lack of insulation in the house may have increased the level of condensation build up, there is no proof that the condensation, mould and dampness issues were specifically and formally raised with the landlord and a landlord cannot address issues not raised with it in a timely manner. The evidence proves the tenant’s complaints were solely focused on noise related insulation issues rather than dampness and mould related insulation issues. As there is insufficient evidence to prove, on the balance of probabilities, the tenant raised the dampness, mould and inability to heat the house issues with the landlord in a timely manner, or at all, I dismiss the tenant’s claim for compensation and exemplary damages for the landlord’s alleged failure to maintain the premise.
Did the landlord breach the insulation standard?
- Giacomo Lizzadro claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- From 1 July 2019, all residential premises must be insulated to a minimum standard. 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 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 states the landlord’s healthy homes assessment report, dated 24 July 2023 contained misleading and deceptive untrue information in that it confirms the premise met the insulation standard. The tenant says that living in the premise, the level of coldness, dampness and noise he experienced proves the house does not contain the required ceiling and underfloor insulation required by the standard.
- The landlord confirmed this is a two-story house and the bottom level rented by the tenant in all likelihood does not have ceiling insulation, but as is recorded in the 2023 healthy homes assessment report, the ceiling cavity is inaccessible so could not be assessed against the insulation standard and the report confirms there is glass wool underfloor insulation that meets the standard.
- The landlord provided evidence that proves after the tenant raised concerns about the lack of ceiling insulation and sound proofing on 31 July 2025, and again on 2 August 2025, it engaged a builder to assess the noise and insulation issues to ascertain if thermal insulation and sound proofing could be installed in the ceiling. The builders confirmed that in order to install thermal insulation or soundproofing in the ceiling of the downstairs level of the premise, they would have to rip the entire ceiling out. This they said would be major work and would come at a significant cost to the landlord as not only would the landlord have to pay for the material and labour to install thermal ceiling insulation and acoustic soundproofing, but the tenant would also have to move out for some months while the work was completed, and the landlord would lose the rental income for that period.
- A landlord is not required to install thermal ceiling insulation or acoustic soundproofing in these circumstances and was entitled to claim an exemption to the requirement to have ceiling insulation when the builders had confirmed that they could not easily access the ceiling cavity to do so.
- The tenant has failed to provide sufficient evidence to prove on the balance of probability that the landlord failed to meet the insulation standard nor that the landlord knowingly gave the tenant false information about the house’s compliance with the insulation standard at the start of the tenancy. Additionally, the landlord has investigated the tenant’s concerns about the lack of thermal ceiling insulation in a timely manner and has had professional builders confirm the premise qualifies for an exemption to the ceiling insulation standard as the ceiling cavity is not accessible to allow such insulation to be installed without having to rip out the entire ceiling of the premise. Therefore the tenant’s claims for compensation and/or exemplary damages for these alleged breaches are dismissed. Did the landlord breach the tenant’s quiet enjoyment?
- Giacomo Lizzadro claims the landlord has harassed him and breached his quiet enjoyment for the entire duration of his tenancy.
- Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
- The RTA further confirms that contravention of section 38(2) in circumstances that amount to harassment of the tenant, is declared to be 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.
- The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However, Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
- In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
- From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
- The tenant produced audio evidence that proves there was no soundproofing between the upstairs and downstairs households and that he was subject to constant noise from the solo mother and her teenage boy and 4- to 5-year-old child’s day to day living above him. The recording prove he could hear them walking across the floor, vacuuming the floor, showering, toileting, yelling, playing music and other such day to day living noises.
- The tenant confirmed the basis of this head of claim is: a. The landlord failing to ensure the upstairs tenants kept the driveway clear so he could access the driveway to enter and leave the premise as and when he needed to, to keep the driveway clear of clutter that caused risks to him of backing over items that could cause damage to his vehicle and to stop the teenage son from reeving the vans in the driveway to the point that fumes from the exhaust entered his premise downstairs; and b. The landlord failing to take reasonable steps to address the excessive noise coming from the upstairs tenants due to the building being inadequate structurally by not having proper soundproofing between the floors of a building being used as two separate residences.
- The Auckland Council records show this two-storey premise is registered as a single dwelling and there is no evidence that is has ever been consented as two separate dwellings. A landlord cannot rent out a downstairs granny flat as a separate, self-contained dwelling without consent in Auckland. In Auckland, any space modified with a full kitchen or food preparation facilities is legally classified as a dwelling or minor dwelling, requiring formal building and resource consents. Unconsented units, such as the one rented by the tenant, often fail to meet strict Building Code requirements (e.g., fire separation/walls, ventilation and acoustic soundproofing), which can invalidate the owner’s home and contents insurance. The landlord did not provide any evidence to the Tribunal that the downstairs area of the premise is consented as a separate legal dwelling nor that it meets the building code requirements to be rented as a separate dwelling.
- To determine if a 1970s property, such as this one, has adequate soundproofing to legally operate as two premises, an owner must check if the shared walls/floors meet current New Zealand Building Code (NZBC) Clause G6 requirements equire a Sound Transmission Class (STC) rating of no less than 55. Floors require an Impact Insulation Class (IIC) rating of at least 55. There was no evidence the landlord had done this. On the contrary, the audio evidence suppled by the tenant suggests that on the balance of probabilities the building does not meet those standards as 1970s building practices rarely met these modern acoustic standards. The landlord did not ask the builders conduct physical testing to ascertain whether there was a fire wall between the floors nor that the building met the acoustic soundproofing standards. There was no discussion about the downstairs unit being upgraded to achieve compliance, as the landlord made it clear that it was unwilling to invest in the cost required to achieve that compliance or to thermally insulate the ceiling cavity.
- While "quiet enjoyment" does not mean complete silence; it means reasonable peace, comfort, and privacy. If the noise experienced by the tenant was simply the result of standard day-to-day living (e.g., walking, closing doors, vacuuming, children’s tantrums etc) and the building meets relevant codes, the landlord would not be in breach of its quiet enjoyment obligations. However, the evidence proves on the balance of probabilities, the downstairs unit does not comply with the required building standards and as a result the tenant was subject to excessive noise created by the day to day living of the household the rented the separate dwelling above him. Additionally, the evidence shows the landlord took steps to investigate having ceiling insulation installed but took no steps to ensure the building was consented to be used as two separate households/dwelling and that these two separate dwellings met the required building codes, including having adequate soundproofing. As such, I find the noise created by the upstairs tenants crossed the line into unreasonable disturbance and a breach of the tenant’s quiet enjoyment.
- I also find the landlord raised the issue of noise with the upstairs tenants, but those tenants could not take steps to reduce unreasonable noise in a premise that contained inadequate structural soundproofing to enable both households to have quiet enjoyment of the separate dwellings they rented.
- I also find the landlord did not take adequate steps to put rules in place to ensure the tenant had the quiet enjoyment of unfettered access to the driveway. The warning the landlord gave to the tenant required her to ensure the driveway was not blocked and was free of clutter but no rue were put in place to ensure that there would be consequences for blocking the driveway with vehicles or clutter, such as not having access to the driveway for the vans and work on the vans if these rules were not complied with. As such, the upstairs tenant blocked the driveway twice after being issued with the warning and er son continued to place clutter behind the tenant’s car and to reeve the van and send toxic fumes into the downstairs tenants home.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- I am satisfied it would be just to require the landlord to pay $3,000.00 exemplary damages ( the maximum penalty available) for this breach because: a. The landlord knew the tenant was suffering extreme distress from the constant noise from the upstairs tenants, when he often worked from home as well as lived there. Additionally, the landlord was made aware of the driveway issues and failed to take adequate steps to ensure the upstairs tenant would ensure the downstairs tenant had unfettered access to the driveway and no toxic fumes entering his home from the van exhaust; b. The tenant suffered distress, fear, worry and loss of privacy/quiet enjoyment of the premise he was paying for because of the landlord’s breaches of his quiet enjoyment because it took no steps to ensure the buildings compliance with acoustic soundproofing requirements when it rented the house out as two separate dwellings. To all intents and purposes, it appears the tenant rented an unconsented granny flat that does not comply with acoustic soundproofing standards, even though it technically meet the healthy homes insulation standard. Additionally, the landlord did not take adequate steps to address the driveway issues. As a result they continued after the upstairs tenant was issued a warning; c. It is in the interests of the tenant to receive exemplary damages for the distress, fear, worry and loss of privacy/quiet enjoyment of the premise he was paying for; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their quiet enjoyment obligations.
- I have set the quantum at 100% of the maximum as this breach was ongoing for the duration of the tenancy, even though it was first raised by the tenant formally on 31 July 2025, and it had caused the tenant considerable distress and impacted his sleep, work and overall quality of life. The breach ultimately led to the tenant having to end the tenancy as even the issuance of a 14 day notice and making complaints to Auckland Council’s noise control unit did not result in resolution of the noise issues he constantly faced.
- Additionally, I award the tenant a rent rebate of $150.00 per week from 31 July 2025 to 28 February 2026 (being the 30 week and 2-day period from when the quiet enjoyment issues were first raised and the end of the tenancy). This is a $4,542.85 of general damages for the stress, inconvenience and loss of amenity suffered by the tenant because of the landlord’s failure to ensure he was able to enjoy the premise he was paying $400.00 per week for. I have not reimbursed all the rent paid for what appears to be an unlawful residential premise because the tenant did enjoy some of the amenity he paid rent for. Reimbursement of filing fee
- Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
- Because Giacomo Lizzadro has wholly succeeded with the claim I must reimburse the filing fee.
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s1, s10, s102(4), s109(2), s109(3), s1970s, s2, s2016, s3, s38, s38(2), s38(3), s45(1), s45(1A)
Key findings
- Dispute theme: exemplary damages
Property management
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5374001?
The tribunal order states: Mcgill Solutions Limited As Agent For Sean Hanping Shu & Melody Xiaoqin Yu
How much money was awarded in case 5374001?
Compensation: Breach of quiet enjoym…: $4,542.85 awarded to tenant; Property Damage: $3,000.00 awarded to tenant; Filing Fee: $28.00 awarded to tenant
What type of tenancy dispute was case 5374001?
The primary dispute was Exemplary damages.
Where can I read the official tribunal order for case 5374001?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13644645-Tenancy_Tribunal_Order.pdf.