Tenancy Tribunal Rejects Tenant’s Application Due to Lack of Evidence

OUTCOME: Dismissed

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[2026] NZTT 5431348

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: Unit/[ADDRESS], [POSTCODE]

ORDER

1. The application is dismissed.

Reasons:

1. Both parties attended the hearing.

2. The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.

Background

3. The tenancy started on 22 May 2022 and ended on 22 December 2025.

4. The premises consist of a 2-level unit with 3 bedrooms and 1 bathroom. The tenant resided there with his family. The landlord advised that there were 6 detached units in the same block.

5. There has been some communication between the parties. Both have provided documentary evidence and submissions during the hearing.

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6. I heard oral evidence from the parties today. I have considered everything placed before the Tribunal even if I do not specifically refer to it.

Issues

7. The issues the Tribunal must decides are these:

a. Did the landlord commit any unlawful acts? If so, Should the Tribunal award the tenant exemplary damages?

b. Has the tenant proved a claim for compensation? c. Is the tenant entitled to a rent refund for an alleged breach of landlord

obligations?

Relevant law

8. Section 45 [NAME] sets out a landlord’s responsibilities. Included among them is the requirement that a landlord comply with the [NAME] and maintain the premises to a reasonable standard.

9. A failure by a landlord to comply with these requirements is an unlawful act in each case – section 13A(1F) [NAME] and section 45(1A) [NAME].

10. Section 85 [NAME] provides:

85 Manner in which jurisdiction is to be exercised

(1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.

(2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.

Other legal considerations

11. The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. 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.

12. The tenant’s rent refund claim is also for the loss of use of and therefore enjoyment of the tenancy.

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13. In [NAME] v [NAME] the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation:

a. The nature of the breach; b. The duration of the breach; and c. The effect of the breach on the party.

14. Exemplary damages are different. They are designed to punish and to deter. They are like a fine.

15. Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 [NAME]. Those factors are:

a. The intention of the person;

b. The effect of the unlawful act; c. The interests of the party against whom the unlawful act was committed;

and d. The public interest

16. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.

17. 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 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.

18. 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.

19. As noted by the District Court in [NAME] v [NAME] ([NAME]) 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.

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Discussion

Did the landlord breach their obligations under the [COMPANY]?

20. [APPELLANT] and [APPELLANT] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the [NAME] ([NAME]), which requires compliance with the Residential Tenancies ([COMPANY]) 2019 (“[NAME]”). [APPELLANT] and [APPELLANT] considers that the landlord has failed to comply with the [NAME] moisture ingress and drainage standard.

21. Compliance dates for the [NAME] 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

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.

b. All boarding houses must comply by 1 July 2021.

c. All houses rented by [NAME] and registered Community Housing Providers must comply by 1 July 2024.

22. 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.

23. The tenant says that not long before they moved in they noticed mould on the ceiling of the bedroom and the bedroom wall. They also noticed mould in other areas of the house. The mould on the ceiling of the bedroom was the worst and reported this to the property manager to which they were advised to open the windows. They say that they opened windows which did not make any difference.

24. For a period of time, they thought that it was the way they were living but then say it was the neighbours who stated that the roof is old which may be causing the issue.

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25. The landlord then organised a roof specialist to attend in October 2025 to look at the roof. The roof specialist took a photo of the roof which showed moss and rust. The tenant spoke with other people in the industry who stated that the roof was in a bad state.

26. The tenant says that it was also suggested by another roofer that the mould on the ceiling of the third bedroom was possibly caused by water penetration coming from the roof. Nothing was confirmed but the tenant suggested that the mould was caused by a leak in the roof.

27. The landlord states that in 2022 they arranged for the gutters to be cleaned. They also arranged for a contractor to inspect the roof at the same time. They did the same in 2024 in respect of having the gutters cleaned and the roof inspected.

28. The landlord says that the neighbour was waiting to replace their carport roof in 2025. It was at this time the landlord was considering replacing the roof in 2024. The contractor had stated to the landlord that while the roof at the present time was fine it would have to be replaced at a later stage.

29. The landlord produced a copy of the [NAME] assessment report dated 24 May 2022 confirming compliance except for the heating requirement.

30. The landlord also provided a copy of a paid invoice confirming that a heat pump was installed as required on or about 26 May 2022.

31. A [NAME] of Compliance was then issued on 31 May 2022. The Tribunal received a copy of this Certificate during the hearing today.

32. During the hearing the tenant asked the landlord for a copy of their report confirming that the roof was fine. The landlord responded by stating that the roofer’s report was only verbal.

33. The tenant also suggested that a [NAME] assessment report confirming that premises are compliant only means that the premises are compliant at that particular point of time.

34. The landlord says that they contacted Tenancy Services who stated that a [NAME] assessment report should be undertaken every 4 to 5 years. The first one was undertaken in 2022 which means the next one should be undertaken in 2026.

35. The landlord confirmed that they undertook a moisture test after the tenant moved out on 6 February 2026 and tested the living room, kitchen, laundry, staircase area, bathroom and bedrooms. The Tribunal and the tenant received a copy of this report during the hearing.

36. The report concluded by stating that there was no evidence of active moisture ingress or significant internal moisture related damage identified.

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37. The landlord also says that when the tenant moved into the property in May 2022 there was no mould. They also say that the house was empty for approximately 1.5 months after the tenant moved out and there was no mould at all.

38. The landlord further stated that a new tenant now resides there and that a routine inspection detected no mould at all. They also say that the tenants before this tenant never complained about mould.

39. The tenant responded by suggesting that the moisture investigation report shows the premises are not completely dry and that non-invasive testing has limitations.

40. The landlord says the premises have double glazed windows and therefore because of this there should be very little moisture. The landlord also says it is north facing and therefore catches the sun light.

Did the landlord fail to maintain the premises in a reasonable state of repair?

41. [APPELLANT] and [APPELLANT] claims that the landlord has breached their obligations under section 45 of the [NAME].

42. Under section 45, a landlord must:

• provide and maintain the premises in a reasonable state of repair

43. Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A [NAME].

44. The tenant claims that the landlord also failed to maintain the downstairs toilet.

45. The tenant says that he is 90% sure that the downstairs toilet does not have Council consent. He says the toilet pipe leaked causing sewage to spill from the outside drain on three occasions.

46. The tenant suggests that the toilet was not installed properly and has leaked from the drain outside the building. The tenant confirmed that the toilet did not leak inside.

47. The tenant says that he ordered a property file and could not see anywhere where the downstairs toilet was recorded anywhere in the property file. The tenant says that he brought the issues of the leaking toilet to the attention of the landlord. He cannot remember exactly when but says it was around 2025 over the phone and by email. He says that the landlord sent someone to unblock the pipe and clean the area.

48. The landlord confirmed the blockage happened on three occasions. The first was in May 2022 and the second time in July 2023. The landlord says that the

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blockage was caused by someone dumping tampons or diapers into the drain which should not have been disposed of in this fashion.

49. The landlord says that all 6 units in the block share the same pipe which means that if one of the units puts something down the drain which should not go then this will have an impact on the pipe outside the tenant’s house.

50. After the second time it happened the landlord dropped a letter in each letterbox of the other units advising owners/tenants not to dispose of anything down the drains which should not go down.

51. The third time was in June 2025 when a drain expert noticed that the pipe had been broken. The landlord arranged for the pipe to be replaced, and the carport area cleaned.

52. The tenant says that he believes the pipe may have been broken a long time ago but does not have any evidence in support of this. He also guesses that this has happened to the other tenant.

Analysis

53. The difficulty for the tenant in respect of his claims is the lack of evidence.

54. The tenant provided a series of photographs with his application. These photos consisted of the roof, the side of the dwelling, and other areas of the property. During the hearing the tenant also provided an undated photograph of what appears to be unconfirmed discolouration on the ceiling of a bedroom. The tenant also provided an email which he sent the landlord on 18 July 2025 requesting maintenance.

55. This is a tenant application and as such the tenant bears the burden of proving, on the balance of probabilities, that the landlord failed in their obligation to maintain the premises and also ensure that the premises complied with the [COMPANY] (“[NAME]”).

56. In this case the tenant has failed to provide any reliable evidence such as contemporaneous entry and exit inspection reports which demonstrate the condition of the premises at the start and end of the tenancy, emails from roofing experts or an independent report from a suitably qualified expert confirming that the premises were not compliant with the [NAME].

57. Under the [NAME] while a landlord has statutory obligations to maintain the premises in a reasonable state of repair, the tenant bears the evidential onus of proving any alleged breach of those obligations.

58. In relation to the tenant’s allegations concerning the roof and the toilet, the tenant has failed to discharge that burden. There is no evidence before the Tribunal confirming, even on the balance of probabilities, that the landlord refused to maintain these items.

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59. No substantive photographs and inspection reports, maintenance invoices, correspondence, expert evidence, witness statements, or any other contemporaneous material have been produced to substantiate the tenant’s claims that either the roof or the toilet was defective, inadequately maintained, or in disrepair during the tenancy.

60. Mere assertions, unsupported by evidence, are insufficient to establish a breach of the landlord’s obligations under the Act. The tenant has not produced any evidence which confirms that an alleged issue was reported and left unaddressed by the landlord. I am not persuaded based on the minimal evidence filed by the tenant that the landlord has committed any unlawful acts.

61. In the absence of such evidence, the Tribunal is unable to make a finding that the landlord breached their obligations under the [NAME].

62. Accordingly, the Tribunal is not satisfied that the tenant has established his claims to the required standard.

63. The tenant claims in respect of failing to maintain and breach of [NAME] have not been established and are therefore dismissed.

64. It follows therefore that the tenant’s claim for exemplary damages and must fail.

Is the tenant entitled to a rent refund because of the alleged breach of landlord obligations?

65. The tenant seeks a full refund of all rent paid based on the alleged breach of [NAME] and the alleged failure to maintain.

66. The tenant has not advanced the amount of rent he seeks to have refunded or a percentage, but rather he asks the Tribunal to decide what is reasonable.

67. The tenant’s claim for a rent refund must also fail.

68. Under the [NAME] a rent reduction or compensation is only available where the tenant establishes on the evidence provided that the landlord breached their obligations and that the tenant suffered a loss of use or enjoyment of the premises as a result.

69. As the breach has not been proven in relation to [NAME], or maintenance issues relating to the roof, mould or toilet issue, there is no basis for any refund, reduction, or reimbursement of rent paid.

70. The tenant has likewise failed to provide evidence demonstrating that the premises were uninhabitable, materially impaired, or of reduced rental value during the tenancy.

71. Accordingly, the tenant’s claim for a rent refund is speculative and unsupported by the evidence filed and is dismissed.

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72. Because the tenant’s application has been unsuccessful I do not reimburse the filing fee.

M [NAME]

29 May 2026

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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, or the failure to make an order, where the amount in dispute on appeal is

less than $1000 • a final order to undertake work, or the failure to make an order, where the value of the

work in dispute on appeal is 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: