Nominal Damages Awarded for Healthy Homes Breach

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[2025] NZTT 5103902, 5202391

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The [COMPANY] is to pay the bond of $720.00 (3690581-011) immediately apportioned as follows:

[NAME]: $642.00

[NAME] and [NAME]: $78.00

2. The manner is which the bond has been apportioned is based on the table below:

Description Landlord Tenant Nominal damages: Failure to include HHS statement in tenancy agreement

$150.00

Nominal damages: Failure to provide HHS statement on request

$150.00

Repairs: Repair door frame and replace lock Agreed refund to landlord of bond held by [COMPANY]

$322.00 $620.00

Total award $942.00 $300.00 Net award $642.00 $0.00

3. The landlord must carry out the following work to the premises, which must be completed by Saturday 31 May 2025:

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a. Carry out any work required to ensure the premises complies with the Healthy Homes Standards.

b. Obtain an independent report certifying that the premises complies with the Healthy Homes Standards.

4. As an alternative to complying with orders 3.a. and 3.b. the landlord may instead pay the tenant $1,000.

REASONS

5. Both parties attended the hearing.

6. On 18 March 2025, the landlord filed a counterclaim (application 5202391).

7. The parties agreed that both applications could be dealt with at today’s hearing.

BACKGROUND

8. The tenancy commenced on 12 August 2022 and ended on 8 December 2024.

9. The tenant’s claim was filed on 11 December 2024.

10. The landlord’s cross-application was filed on 18 March 2025.

BOND

11. The tenancy agreement records the bond to be paid was $2720.

12. The landlord signed the tenancy agreement on 26 July 2022.

13. The tenant signed the tenancy agreement on 27 July 2022.

14. On or about 27 July 2022, the tenant paid the landlord $720 towards the bond. The remaining $2,000 in bond was to be paid by the tenant receiving a refund of a bond in relation to a previous tenancy (at a different address) and paying it to the landlord.

15. At the end of July, or start of August 2022, the tenant received $2,000 refund from the [COMPANY] in relation to the previous tenancy but did not on-pay the $2,000 to the landlord.

16. The $720 paid to the landlord on or about 27 July 2022 was lodged with the [COMPANY] on 2 September 2022.

17. At the end of the tenancy, the landlord refunded the tenant $620 from the landlord’s own funds.

18. The parties agree, of the $720 currently held by the [COMPANY], $620 should be refunded to the landlord as reimbursement of the $620 paid to the tenant.

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19. The parties do not agree on how the remaining $100 should be refunded.

BURDEN AND STANDARD OF PROOF

20. The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).

21. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards.

22. 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 fraction 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.

23. 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.

24. 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.

TENANT’S CLAIMS

Failure to include Healthy Homes Standards statement in tenancy agreement

25. [NAME] and [NAME] claim that the landlord has breached their obligations under section 13 of the Residential Tenancies Act 1986.

26. Under s13(1A), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that states whether or not there is any insulation installed in connection with any ceilings, floors, or walls that are at the premises, and, details of the location, type, and condition of all insulation that is installed in the premises.

27. Under s13(1CA), 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 healthy homes standards as required by section 45(1)(bb).

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28. 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 $750.00. See section 13A and Schedule 1A Residential Tenancies Act 1986.

29. The landlord accepts they did not include the required statements with the signed tenancy agreement. The landlord produced an insulation certificate dated 7 January 2020, but the tenant says they did not view it or receive a copy of it. In any event, the landlord accepts they did not include the statements required under s13(1A) and (1CA) with the tenancy agreement.

30. While the landlord accepts they committed the alleged unlawful act, the RTA requires that a person who seeks exemplary damages for an unlawful act must apply to the Tribunal within 12 months of the date of commission of the unlawful act. See section 109(2)(b) of the RTA.

31. As the tenancy agreement was signed 26 July 2022, the 12-month time limite for filing a claim for exemplary damages has expired.

32. I decline to award exemplary damages. I do however find nominal damages are appropriate in recognition of the landlord’s failure to comply with the requirements of the RTA in respect of the Healthy Homes Standards statement.

33. Nominal damages are not compensatory:1

‘Nominal damages’ is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed.

34. If an applicant fails to prove an actual loss, damages can be limited to a nominal sum. Nominal damages are token sums of money awarded to acknowledge the existence of the breach.

35. I consider $150 in nominal damages is reasonable in recognition of the landlord’s failure to include the required Healthy Homes Standards statements with the signed tenancy agreement.

Failure to provide Healthy Homes Standards statement within 21 days of request

36. [NAME] and [NAME] claim that the landlord has breached their obligations under section 45(1AC) of the Residential Tenancies Act 1986.

37. Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.

1 [NAME], Civil Remedies in New Zealand (2nd ed, 2011): Westlaw electronic resources at 1.6.10

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38. 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 $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.

39. The tenant produced evidence that they emailed the landlord and requested documents relating to the landlords’ compliance with the Healthy Homes Standards on 31 August 2022, 8 September 2022 and 1 November 2022. The landlord denied receiving the requests, however, the email chains show the landlord replied to the tenant’s last email request on 26 November 2022 (but in their reply, the landlord did not provide the information requested).

40. I find the landlord committed an unlawful act by failing to supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the tenant’s request.

41. As with the previous claim, the RTA requires that a person who seeks exemplary damages for an unlawful act must apply to the Tribunal within 12 months of the date of commission of the unlawful act. See section 109(2)(b) of the RTA.

42. The time for filing a claim for exemplary damages for the unlawful act has expired. I decline to award exemplary damages.

43. I do however find that nominal damages are appropriate in recognition of the landlord’s failure to comply with the tenant’s request for the Healthy Homes Standards statement.

44. I consider $150 in nominal damages is reasonable in recognition of the landlord’s failure to provide the Healthy Homes Standards information within 21 days of receiving a request.

Failure to comply with Healthy Homes Standards

45. [NAME] and [NAME] claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [NAME] and [NAME] say the landlord has failed to comply with the HHS draught stopping standard.

46. Compliance dates for the HHS vary depending on the tenancy:

a. For private rentals:

i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or

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ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy.

iii. All private rentals must comply by 1 July 2025.

47. The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building and which allow draughts to arise. The HHS does provide exemptions in specific circumstances.

48. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).

49. The tenant says the house had draughts in the master bedroom, living room and in a storage room under the stairs. The tenant says they did not conduct any thorough investigations but believe the draught in the master bedroom came from a sliding door that opened to a deck. They did not know where the alleged draught in the kitchen came from. For the storage cupboard under the stairs they said there was a [NAME] hole in the flooring, approximately one inch in diameter, which may have been the cause of the draught.

50. The landlord denies there were any issues with draughts in the master bedroom, but noted the house was old and the windows may not be sealed tightly. The landlord said in the storage room there was an access hatch, approximately 60cm x 60cm. He said he was unaware of the one-inch hole the tenant referred to in that storage room.

51. Ultimately, it is for the tenant to prove their claim, on the balance of probabilities. The tenant did not produce any photographic or documentary evidence in support of their claim that the premises was not free from unreasonable gaps and holes that are not an intentional part of the building.

52. The tenant has not proved their claim.

53. I dismiss the tenant’s claim for exemplary damages.

Work order to make the premises Healthy Homes Standards compliant

54. The tenant sought from the Tribunal an order to ensure that the premises would be made Healthy Homes Standards compliant for any future tenants.

55. While the tenant’s claim that the premises does not currently meet the Healthy Homes Standards was not proved, I am left unsure as to whether the premises is currently Healthy Homes Standards compliant or not. Certainly, the landlord’s failure to comply with the requirement to provide Healthy Homes Standard certification at the start of the tenancy, and on the tenant’s request during the tenancy, increases my concern.

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56. Accordingly, pursuant to s78(1)(e), I make an order that the landlord carry out any and all work required to make the premises Healthy Homes Standards compliant. If the premises is found to be compliant, without further work being done, the landlord may simply obtain an independent report to confirm that.

57. If the Tribunal issues a work order that is not being made by consent of both parties, as in this case, the Tribunal must also make a monetary order as an alternative to compliance with the work order. See sections 78(2) of the RTA.

58. The objective of this work order is to ensure the premises is brought up to the current required Healthy Homes Standards, if it is not already. For that reason, while an alternative monetary order is made in the form of an alternative payment to the tenant, I urge the landlord to comply with the work order.

LANDLORD’S COUNTER-CLAIM

Is the tenant responsible for the damage to the premises?

59. A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B of the RTA.

60. The tenant accepts that damage occurred to the door of his son’s bedroom during the tenancy, by either accident or his son locking the door. The tenant says he agreed to patch the damage done to the door handle when unlocking the door, which included some damage to the door frame and removing the fixed metal plate onto which the door closed. The tenant says he fixed the damage to the landlord’s satisfaction during the tenancy, and/or in the additional week after the tenancy ended, and the landlord is only claiming the costs after they failed to come to an agreement as to how the bond was to be refunded.

61. The landlord says the tenant carried out some remedial work but it was not done to a satisfactory standard. The landlord notes the metal plate for the door to close into was not replaced.

62. I am satisfied the landlord has proved the damage to the door frame and lock of the bedroom was caused by the tenant during the tenancy, indeed that is accepted by the tenant. The damage is more than fair wear and tear.

63. The photographs provided by the parties show that the tenant’s repair did not adequately repair the damage. The metal plate where the bolt of the door would sit to hold the door shut was not replaced and was patched over.

64. The landlord has provided an invoice for repairs completed on the door, including $200.00 (ex GST) to repair the door frame and $80.00 (ex GST) to install a new door lock.

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65. I award the landlord $322.00 (inc GST) for those repairs.

66. The landlord claimed a total of $655.50 for the repairs. The invoice provided included the above two items, and a further item “fixing all holes in the house and paintings.” The third item in the invoice related to the landlord’s allegation that the tenant caused damage to several walls in the premises.

67. The landlord said he painted the interior of the house two years before the tenancy began. The landlord did not produce any evidence of the condition of the walls at the start of the tenancy.

68. The tenant denied causing the damage.

69. Without evidence to show the condition of the walls at the start of the tenancy, I can not be satisfied that any damage shown in photographs taken on 15 December 2024 was caused by the tenant, or someone he was responsible for, during the tenancy.

70. I dismiss the landlord’s claim for compensation for holes in the wall and painting.

Did the tenant comply with their obligations at the end of the tenancy?

71. At the end of the tenancy the tenant must leave the premises reasonably clean and tidy. See section 40(1)(e)(iii) Residential Tenancies Act 1986.

72. The landlord says when the tenant moved out he left the property in an untidy and unclean state. The landlord says he paid a cleaner $300 cash to clean the property. The landlord says the cleaner did not provide an invoice as it was a cash job.

73. The landlord did not produce any photos to show the alleged unclean condition the premises was left in.

74. The tenant says he left the premises clean and tidy.

75. Without evidence to show the condition the premises was left in at end of the tenancy, the landlord has not proved the tenant failed to meet their obligations under s 40(1)(e)(iii). Without evidence of payment made to their cleaner, the landlord has also not proved they incurred the cost claimed for cleaning.

76. I dismiss the landlord’s claim for compensation for cleaning.

Claim for one week’s rent for access to complete work after tenancy ended

77. The landlord seeks an order for $730, being one week’s rent, for allowing the tenant to re-enter the premises to complete agreed works in the week after the tenancy ended.

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78. The tenant produced text messages to show that the day after he had moved out, on 9 December 2024, the parties agreed the tenant could return to the premises over the following week to complete some agreed work (to repair the damaged door to the tenant’s son’s bedroom and remove a wardrobe).

79. The landlord confirmed the parties had not agreed that the tenant would pay the landlord $730 in order to have access to the premises to complete repairs in the week following 9 December 2024. However, the landlord submitted it was fair compensation considering the work was not completed to the standard he expected.

80. The landlord has not identified any contractual or statutory basis for his claim for compensation for providing the tenant with access to the property to complete agreed work. Given the parties agree the tenancy ended on 8 December 2024, rent can not be ordered beyond that date.

81. I dismiss the landlord’s claim for one week’s rent in compensation for access to complete work after the tenancy had ended.

Reimbursement of the application fees

82. If successful, both the landlord and tenant sought reimbursement of the application fees paid.

83. As neither party was substantially successful with their claims, each party must pay their own application fees.

[NAME]

25 March 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

REASONS