Tenant Ordered to Pay $8,470.85 for Rent Arrears and Fees

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[2025] NZTT 4960756, 5011191

5026432

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [COMPANY] $8,470.85 immediately, calculated as shown in the table below:

Description Landlord Tenant Previous order application 4960756 dated 25/05/2025 rent arrears $7,682.86

Water rates $378.49 Cleaning $402.50 Lock/key replacement $345.00 Rubbish removal $920.00 Filing fee reimbursement for application 4960756 $27.00

Compensation $1,285.00 Total award $9,755.85 $1,285.00 Net award $8,470.85 Total payable by Tenant to Landlord $8,470.85

2. This Order incorporates the Tribunal Order made on 25 February 2025 under application 4960756.

3. The landlord’s applications for damages to the premises, costs and carpet cleaning are dismissed.

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4. The tenant’s application for return of the bond, failure to maintain the premises and breach of the Healthy Homes Standards are dismissed.

Reasons:

5. This is a cross application consisting of three claims. The landlord lodged an application on 02 August 2024, the tenant lodged a cross application on 20 September 2024 and the landlord lodged a further application on 06 October 2024.

6. There have been three hearings for this matter at Waitakere District Court. These hearings took place on 16 September 2024, 14 October 2024 and 10 January 2025. The landlord attended these hearings in person. The tenant attended the hearing on 16 September in person and the hearings on 14 October 2024 and 10 January 2025 via telephone.

7. There has also been three telephone/video hearings which took place on 25 September 2024, 16 April 2025 and 09 May 2025. Both parties attended the hearings on 25 September 2024 and 16 April 2025. However, the tenant did not attend the hearing on 09 May 2025. I am satisfied that the tenant was served notice of the hearing and the hearing proceeded in her absence.

8. Apart from the telephone hearing that took place on 16 April 2025 which only the landlord attended, the tenant and the landlord attended the other hearings.

9. Following the hearing on 25 September 2024, an order was issued terminating the tenancy and awarding rent arrears of $7,682.86 to the landlord. This Order (No: 4960756) is incorporated into this Order for enforcement purposes.

10. The landlord is claiming water arrears, compensation and costs.

11. The tenant is claiming return of the bond, failure to maintain the premises and failure to maintain the premises and breach of the healthy homes standards.

A. RELEVANT LEGAL CONSIDERATIONS: 12. The Tribunal applies the usual civil law standards and expectations. One of the

central expectations relates to onus of proof. With any claim before the Tribunal, it is the applicant who must establish the claim, or to put that another way, the applicant must prove the claim. If the applicant does not provide sufficient evidence and reasoning to establish the claim, then it must be dismissed.

13. The Tribunal requires the applicant to establish their claim to the balance of probabilities. That means that the applicant must show that what they are claiming is more likely than not. To put that into a mathematical context, the applicant must prove their claim to just over the 50% probability mark. Again, if the claim is not established to the balance of probability, it must be dismissed.

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B. WHO IS THE LANDLORD?

14. The Tribunal has jurisdiction to hear claims between tenants and landlords. A property manager can only be an applicant or respondent therefore if they have status as a landlord.

15. In all three of the applications, the landlord has been recorded as [COMPANY] ([NAME]). However, the Tenancy Agreement records that the landlord is [NAME] as Agent for the Owner. Therefore, it is necessary for me to determine if the landlord should be [NAME] as Agent for the Owner or [NAME] and the Owner.

16. The definition of the landlord in section 2(1) of the Residential Tenancies Act 1986 (RTA) includes an agent “where appropriate”. The RTA recognises that the owner of the property will not necessarily be the landlord. For example, section 5(1)(n) of the RTA refers to both “landlord” and “owner”.

17. Under common law principles, in the absence of other indications, when an agent makes a contract, purporting to act solely on behalf of a disclosed principal, whether identified or unidentified, the agent is not liable to the third party on it. Nor can the agent sue the third party on it (Montgomerie v United Kingdom Steamship Association [1891] 1 QB 370; Fowler & [COMPANY] v St Stephens College Board of Governors [1991] 3 NZLR 304 (Hc)).

18. The mere involvement of an agent does not mean the tenant can bring a claim against an agent or, on the other hand, that an agent can bring a claim against a tenant ([NAME] v [NAME] DC Dunedin TT 1080/97).

19. The contract (the tenancy agreement) is a fundamental factor in determining whether an agent is an intermediary or a party to a contract. The question of whether an agent has standing to be sued or be sued is one of construction dependent on the intention of the parties determined objectively from the words of the contract, taking into account the background facts.

20. The District Court has taken the definition in section 2(1) of the RTA to include an agent “where appropriate” to mean “where appropriate in accordance with the principles of the law of agency” (Mumby v Gary Borwn Realty Ltd [2011] DCR 420). However, the Tribunal has frequently applied the definition of landlord in section 2(1) of the RTA broadly to include a property manager acting as an ‘agent’.

21. By way of illustration, in Hayward v Lambton Property Management Limited [2012] NZTT, Lower Hutt, 11/01694/LH, the Tribunal held that the common law rules of agency are affected by the extended definition of landlord, and that the words “where appropriate” in section 2(1) of the RTA do not limit the extended definition. It said there were sound policy reasons why the definition of landlord should be extended to include the agent: many owners use professional property

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managers; some owners are absentee or live oversees; many tenants, owners and agents do not understand the implications of the common law rules; and a tenant could be left in a difficult situation if forced to pursue an owner whom they did not know and had no dealings with.

22. There are several District Court cases which discuss agency principles. [COMPANY] v [NAME] (DC, Christchurch, M56/93, 16 March 1993) an agent brought a claim against the tenant in its own name which was then appealed by the owner. [ADDRESS] declined to hear the appeal because the original claim was wrongly brought by the agent. [ADDRESS] held the primary meaning of “landlord” was appropriate to the commencement of the claim, and it was not appropriate to use the inclusive definition of “agent of the landlord”. However, it seems that in this case, the agent was not in fact a party to the original contract at all so it appears that this decision is not directly relevant to the issue of whether an agent who signs (and/or is named on) a tenancy agreement can sue or be sued on it.

23. The most comprehensive discussion of agency principles is in Mumby v Gary Brown Realty Ltd [2011] DCR 420. There, the agent took over the tenancy from a previous agent. A new tenancy agreement was prepared, which named the agent as landlord and required the tenant to pay rent to the agent. The agreement was signed by the tenant, but not the agent or owners. The tenant brought a claim against both the owner and the agent. The Tribunal held that because the tenant knew that the agent was acting of the owners, liability rested solely with the owners. The tenant appealed on the grounds that the tenancy agreement was with the agent and because they were overseas, the order against the owners was unenforceable.

24. The District Court referred to the commentary on agency in the Laws of New Zealand and stated:

[30] The findings by the tenancy adjudicator in respect of liability appear to be remised, on his view, as expressed in his "Background" - that if a tenant is aware that the agent is acting for landlords then liability rests with the landlords and no liability attaches to the agent.

[31] This is in fact not the legal position in respect to agents, and the law is no different for agents acting under the Residential Tenancies Act than agents acting in any other capacity.

[52] The tenant is entitled to sue the person who made the contract and the agent cannot escape by saying that, in fact, he was really acting on behalf of someone else. The only avoidance of liability would be to show on the contract (and in the supporting documentation) that he is only an intermediary, for example by signing "as agent for" or "on behalf of".

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[53] Regardless of the fact that the tenant was aware that [COMPANY] was an agent, the agent is still liable in respect to the tenancy.

25. The Judge considered several factors in deciding the agent was liable: the tenancy agreement named the agent as landlord, a bond lodgement letter from the [COMPANY] referred to the agent as landlord, the agent was involved in inspections, the agent dealt with the tenant's inquiries and complaints, and the agent issued a termination notice. The Judge considered the surrounding circumstances as well as the tenancy agreement itself.

26. In the recent decision of Abdulla Moussa Ragab Hamouda v Gralin Property Management (Auckland Central) Limited [2024] NZDC 16642, the District Court found that the property managers should have known the landlord’s obligations, so should be responsible for paying the order (with the owner).

27. Many tenancies are managed by agents who are professional property managers. In almost every case the tenancy agreement will prominently name the agent, the bond will be paid to and lodged by the agent, the agent will conduct inspections and deal with any complaints or queries by the tenant, and any notices required under the RTA will be served by the agent. Usually, the tenant will know the agent is acting for an owner, and may know the name of the owner, but to all intents and purposes will understand the agent to be their landlord. These are some of the background factors the District Court considered in Mumby when deciding the agent was a landlord.

28. Where an agent gives the third party (here the tenant) the understanding that the agent acts for another, as by reference to a generic reference (such as “the owner”) there can be situations where the third party can be regarded as being willing to deal with the principal, whoever that person is. Often this is accepted in commercial transactions, but this can sometimes be an improbable construction to put on the situation. The facts can give rise, or assist in giving rise, to the inference that the third party will deal only with the agent.

29. Whether the agent is a 'landlord' or mere intermediary should depend on the substance of the relationship as well as considering the words used in the agreement. The tenancy agreements used by professional property managers vary widely in the way they describe themselves, the owners, and their interrelationship. Sometimes the wording is more likely to obscure than illuminate intent, both for property managers and tenants. An agent acting for an unnamed principal will not necessarily be a party to the contract; this is just a relevant factor in determining the parties’ intention.

30. An approach based on the substance alongside form is consistent with the Tribunal's jurisdiction under 85(2) RTA:

https://tta.today/download/abdulla-moussa-ragab-hamouda-v-gralin-property-management-auckland-central-limited-2024-nzdc-16642/ https://tta.today/download/abdulla-moussa-ragab-hamouda-v-gralin-property-management-auckland-central-limited-2024-nzdc-16642/

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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.

Application of the law to the facts: 31. Applying these principles to the facts of the case I am satisfied for the reasons

set out below that it is appropriate for [NAME] to be regarded as the landlord for the purposes of this application.

32. The tenancy agreement records under “Landlord” – “[COMPANY] on behalf of the Owner”.

33. The Owner’s name and contact details are not included in the tenancy agreement.

34. The landlord has confirmed the name of the Owner and that the Owner is based in New Zealand.

35. The tenancy agreement records that the rent is payable to [NAME]. The landlord confirmed that all contact with the tenant was through [NAME].

36. Here the fact that the agent was acting for a principal was disclosed. However, the principal is unnamed. As set out above, this in itself is not determinative, but it is a relevant factor in determining the intention of the parties.

37. The drafting of the tenancy agreement and the surrounding circumstances including that the owner is unnamed in the tenancy agreement, the tenant had no contact with and no means of contacting the owner, that rent was paid to [NAME] and all contact regarding the tenancy was with [NAME], are all factors which point to a full assumption of responsibility as landlord by [NAME]. There is a clear inference from all the facts that the tenant was expected to deal only with [NAME].

38. I find that the landlord is [COMPANY].

C. THE LANDLORD’S CLAIMS:

How much is owed for water rates?

39. The tenancy ended on 28 September 2024. The landlord is claiming $659.55 for unpaid water rates. This consists of the water consumption charges for the premises for the duration of the tenancy. The consumption charges for May, June and August were all between $50.00 to $85.00. In July the charge was $317.68 and in September the charge was $134.95.

40. The tenant accepts that she owes water arrears but says the amount claimed is too much. She says that there was a leak and that is why the charges in July and September were high.

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41. The landlord says that the tenant only told him about a leak in September. The landlord said that a plumber attended the premises and advised him that there was not a leak. The landlord says that the fact the charges were high in June and then normal in July show that there was not a leak, and it was due to the tenant’s usage.

42. The tenant says the rates reduced because in that month they were not using the water at the premises.

43. This is the landlord’s claim and the burden of proof is on the landlord. I note there is no written evidence from the plumber that the premises did not have a leak. In the absence of that evidence, I find that there was a leak and award $378.49 for water arrears.

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

44. Section 40(1)(e)(ii)-(v) of the RTA provides that at the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. Section 40(1)(ca) of the RTA provides the tenant is required to replace worn out smoke alarm batteries during the tenancy. The tenant must also replace standard light bulbs.

45. The landlord has claimed that the tenant did not leave the premises reasonably clean and tidy, did not remove all rubbish and did not return the keys.

46. The landlord has claimed $480.00 (including GST) for carpet cleaning. The landlord has provided an invoice showing this work has been done. The tenant says the carpets were dirty but not from anything she had done. The tenant said there was mould coming through the floor to the carpets.

47. The landlord has not provided any photographs showing the carpets were dirty at the end of the tenancy. This is the landlord’s claim and it is the landlord who has the burden of proof. This claim is dismissed.

48. The landlord has claimed $402.50 (including GST) for general cleaning. At the hearing, the tenant said she was not disputing this claim.

49. I award $402.50 (including GST) for general cleaning.

50. The landlord is claiming $345.00 (including GST) to replace the locks. The landlord says the tenant did not return the keys and they had to replace the locks. The tenant says that the key was returned and was put on top of the door. The tenant said that the landlord sent her a text message saying he had received the key.

51. There was text correspondence between the parties on 30 September 2024. The tenant said she had left a key above the door. She also said that her partner “has

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the rest of the keys and would leave them behind”. The landlord responded by telling the tenant that to tell her partner to leave the keys in the drawer and if the keys were not there, the locks would be changed and she would be responsible for this cost.

52. I am not satisfied that the tenant returned all of the keys that had been given to her at the start of the tenancy. This claim is proved and I award $345.00 (including GST) to replace the locks.

53. The landlord is claiming $1,000 plus GST for fees incurred to dispose of the tenant’s belongings/rubbish. The landlord has provided photographs showing the tenant left a significant amount of belongings/rubbish at the premises and an invoice to support this claim.

54. The tenant does not deny that she left her belongings at the premises. The tenant says she should not be liable for the cost of disposing of it because, she says, the property was damaged due to the state of the premises. She said the property was covered in mould caused by the condition of the premises.

55. The tenant also said that some of the rubbish that had to be removed, an old bike and an oven, were there when she moved in. The landlord has provided a photograph showing the bike and the oven in a carport area. Unfortunately, there is not a photograph of this area at the start of the tenancy.

56. The tenant has not provided any photographs to show that the property was covered in mould. I am not satisfied that the belongings she left at the premises were damaged by mould.

57. The landlord has not satisfied me that the tenant left the oven and the bike in the carport. I make a deduction fo $200 plus GST to dispose of the bike and the oven and award $920.00 (including GST) for disposal of the tenant’s belongings/rubbish left at the premises.

Is the tenant responsible for the damage to the premises?

58. Sections 40(2)(a), 41 and 49B of the RTA provide that 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.

59. Section 49B(3)(a) of the RTA provides that where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent).

60. Section 49B(3)(b) of the RTA provides that where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four

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weeks' rent (or market rent). Section 49B(3A)(a) of the RTA provides that where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.

61. Section 49B(1) of the RTA provides that tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for.

62. Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. (See Guo v Korck [2019] NZHC 1541.)

63. The landlord is claiming $460.00 (including GST) for damage to the door frame which he says was caused during the tenancy. The landlord has provided a photograph of the damaged door frame. The tenant says that the door frame was like that at the start of the tenancy.

64. The tenancy agreement does have a checklist report for the condition of the premises. Unfortunately, this was not completed by the tenant. I asked the landlord for pre-inspection tenancy report. However, the landlord advised that one was not prepared at the start of the tenancy. The landlord did provide photographs of the premises which he said were taken on 04 May 2024. However, the number of photographs provided were significantly less than the Tribunal would normally see in a pre-tenancy inspection report.

65. This is the landlord’s claim and the landlord has the burden of proof. Based on the evidence presented, I am not satisfied that this damage was caused during the tenancy.

66. This claim is dismissed.

67. The landlord is also claiming for damage to the wooden deck railing. The tenant says this damage was caused at the start of the tenancy when a visitor leant on the railing. The tenant said the railing was rotten and that is why it broke.

68. The landlord says that the railing was not rotten and does not accept that the damage was caused as described by the tenant. The landlord has provided a photograph of the damaged railing. In my opinion, the railing is suffering from age and weather deterioration.

69. I am not satisfied that this damage was caused intentionally or carelessly by the tenant.

70. This claim is dismissed.

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Claims for time spent:

71. The landlord is claiming $500 for: visits to the premises; time spent chasing rental payments; and attendance at the Tribunal.

72. The claim for time spent attendance at the Tribunal is essentially a claim for costs. Section 102 of the RTA sets out the limited circumstances in which the Tribunal can make an award for costs. I do not consider that any of the circumstances apply. The application for costs for attendance at the Tribunal is dismissed.

73. The application for time spent visiting the premises and chasing rental payments is also dismissed. I note there is no ability in the RTA for a landlord to charge a tenant for the cost of managing the premises (refer to section 11 of the RTA). These are a cost of doing business which the landlord cannot pass on to the tenant.

74. This claim is dismissed.

D. THE TENANT’S CLAIMS

Did the tenant pay a bond to the landlord?

75. A bond for this tenancy has not been lodged with the [COMPANY]. The tenant says she paid the bond to the landlord in cash. The landlord denies that the tenant did so.

76. The tenant says that prior to the commencement of the tenancy, she met the landlord at the premises and collected the keys. The tenant said that during this meeting, she paid the bond to the landlord in cash. The tenant said that this money was her mother’s “emergency fund” which she kept in cash and, therefore, she does not have records of the sum being withdrawn from a bank account.

77. The landlord says that the tenant did not pay him the bond in cash. He said that he asked the tenant to pay the bond, but she did not do so. I asked the landlord if he had any correspondence of him asking for the bond to be paid. The landlord said he did not. The landlord said that as the tenant was in arrears from early on in the tenancy, his focus was on getting the rent paid and he stopped asking for the bond to be paid.

78. The tenant said that in previous tenancies she had paid the bond and had received confirmation from the [COMPANY] saying it had been lodged shortly after. The tenant said she did not receive that confirmation from the [COMPANY].

79. The landlord referred to the Tenancy Agreement which has a section to record when the bond is paid titled “bond and rent receipt”. He said if the tenant had paid the bond this section would have been completed.

80. It is the tenant who is claiming she has paid the bond and for the bond to be returned to her. Therefore, the onus is on the tenant to prove that she paid the

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bond to the landlord. There is no documentary or witness evidence to support the tenant’s claim. I am not satisfied that the bond was paid to the landlord.

81. This claim is dismissed.

Did the landlord fail to maintain the premises?

82. Section 45(1)(b) of the RTA provides that the landlord shall:

… 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

83. Tenants also have obligations under the RTA. One of these obligations arises where the tenant becomes aware of damage to or a need for a repair of the premises. In these circumstances, the tenant must tell the landlord straight away. Section 40(1)(d) of the RTA provides that the tenant must:

Notify the landlord, as soon as possible after discovery, of any damage to the premises or of the need for any repairs.

84. Generally, a landlord is only expected to investigate and repair a defect once it has been brought to its attention. In [NAME] v [COMPANY] DC Wellington CIV-2009-085-1431, 24 February 2010, the District Court held:

… 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 might be.

85. The tenant said there were rats in the premises. The tenant said she notified the landlord of this “several times”. The tenant provided photographs showing rat droppings and damage which are consistent with a rat infestation.

86. The landlord denies being notified of a problem with rats at the premises. However, the tenant has provided a text message of 14 August 2024 stating that there had “been rodents coming into the house”.

87. I note that it this is the tenant’s claim, and the tenant has the burden of proof. I am not satisfied that the tenant did notify the landlord of an issue with rats before 14 August 2024. I am also not satisfied that the tenant’s explanation of the issue was sufficient to put the landlord on notice of the severity of the issue. The

http://www.westlaw.co.nz/maf/wlnz/app/link/doc?uci=CASE~NZ~NAT~DC~2010~18697~SUMMARY~NZ&type=Summary http://www.westlaw.co.nz/maf/wlnz/app/link/doc?uci=CASE~NZ~NAT~DC~2010~18697~FULLTEXT&type=Judgment http://www.westlaw.co.nz/maf/wlnz/app/link/doc?uci=CASE~NZ~NAT~DC~2010~18697~FULLTEXT&type=Judgment

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premises is on a large block of land. There is a difference between the occasional sighting of a rat and an infestation.

88. This claim is dismissed.

89. The tenant also clams that she had to replace a tap in order to connect her washing machine. The tenant said this was $300.00. The tenant did not provide an invoice or an other form of documentary evidence to support this claim.

90. The landlord says, and I accept, that as the tap was a connection to fit her washing machine this was her cost.

91. This claim is dismissed.

Did the landlord breach the Healthy Homes Standards?

92. The tenant claims 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). The tenant considers that the landlord has failed to comply with the HHS heating standard.

93. 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

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 Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.

94. The tenancy started on 06 May 2024. Therefore, the compliance date for the premises was within 120 days of that date. The premises should have complied with the HHS no later than 03 September 2024 which was just under four weeks before the tenancy ended.

95. 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.

96. The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The

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standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.

97. The tenant’s complaint about the HHS – heating standard is that the heat pump was installed 3 weeks after the tenant moved in.

98. The tenant has a similar complaint about the HHS – ventilation standard. The ventilation in the bathroom was not installed until shortly after she moved in.

99. However, at the time the tenant moved in until well after the bathroom ventilation and the heat pump were installed, the HHS did not apply to the premises.

100. The claims for breach of the HHS – ventilation and heating are dismissed.

101. The tenant claims the premises had suffered from mould and claims that the landlord failed to comply with the HHS – moisture ingress and drainage standard. As the HHS only applied to the tenancy for less than one month, I have addressed this issue below as a failure to provide a home free from dampness.

Did the landlord breach section 45 of the RTA by failing to provide a home free from dampness?

102. Section 45(1)(c) of the RTA provides that the landlord shall:

… comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises; and …

103. Of relevance to section 45(1)(c) above is the Housing Improvement Regulations 1947 (the “1947 Regulations”). Regulation 15 of the 1947 Regulations provides that every house shall be free from dampness.

104. On a number of occasions, the Tribunal, along with the District Court, have recognised that mould and condensation are difficult issues and that it is often not easy to point to a single cause or allocate responsibility to one party only when mould is present.

105. In Warwick Todd Ltd v Tapper TT1381/02, Christchurch, 14/089/2002, the Tribunal found that a tenant can be responsible for mould problems if they fail to air and heat premises sufficiently, and a landlord can be responsible if they do not provide sufficient means to air and heat the premises or if the premises are damp.

106. In [NAME] v [COMPANY] DC Waitakere, CIV-2011-090-00056, 27 April 2011, the District Court recognised that the presence of mould in a property can be caused by the state of the premises or a lack of ventilation. The fact that some mould was in the house is not enough to show that it was not in a reasonable state of repair.

107. That said, where there is a need for repair, the tenant also has obligations under the RTA. Section 40(1)(d) of the RTA provides that the tenant must:

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108. In [NAME] v [COMPANY] DC Wellington CIV-2009-085-1431, 24 February 2010, the District Court held:

109. The tenant said she told the landlord about the mould from the start of the tenancy. The landlord said the first time he became aware of the issue was when he received the message from the tenant of 14 August 2024 stating that there “.. is black mould in the bathroom which I have also mentioned to you and you have done nothing about”.

110. The landlord said the reason why there was mould was because the tenant kept the curtains down and did not ventilate the premises or wipe the mould away. However, the photographs provided by the tenant show the mould on the ceiling to be extensive. I consider that it is more likely than not that the mould was a result of an dampness issue with the premises and not a failure on behalf of the tenant.

111. While the only documentary evidence showing the tenant raised the issue is in August 2024, I accept that she raised the issue verbally before then for two reasons: in the correspondence the landlord did not challenge the tenant’s claim that she had mentioned it to him before; and because the landlord was adamant that as heating and ventilation had been installed, it was not the landlord’s responsibility.

112. This claim is upheld.

E. SHOULD THE TENANT BE AWARDED COMPENSATION?

113. I have found that the landlord has breached section 45(1)(c) of the of the RTA. Breaching this section is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. (See section 45(1A) of the RTA). However, the tenant has not applied for exemplary damages and I make no such award.

114. The tenant is seeking $10,000 in compensation and I do consider it is appropriate to make an award to compensate the tenant. The tenant said that the mould issue caused her a great deal of stress. She said she was concerned

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about the quality of the air in the premises and had to use her asthma inhaler more than usual.

115. Moreover, the tenant received less than what she agreed to pay for. I consider that a fair award for the failure to provide a home free from dampness is an award for loss of amenity of $1,285.00 which is approximately 10% of the rent due over the course of the tenancy. As set out above it the Orders, this amount has been deducted from the sums owed by the tenant to the landlord.

F. OTHER CLAIMS: SUPPRESSION AND FILING FEE:

116. Both parties have sought reimbursement of the filing fee and suppression. The landlord was substantially successful in its first claims for rent and water arrears and termination of the tenancy. I award reimbursement of the filing fee for claim 4960756.

117. While the tenant has had some success in her claim and the landlord has had some success in his second claim, I do not consider that either of the parties have been substantially successful. For this reason, I decline to order reimbursement of the filling fee for applications 5011191 and 5026432 and I decline to award suppression for either party.

G. FURTHER COMMENTS:

118. In the course of the proceedings, I was provided with a text message from the landlord to the tenant saying that if the tenant did not pay the rent, he would report her “to police and immigration authority”.

The tenant’s failure to pay rent as and when it fell due was a breach of her obligations under the tenancy agreement and the RTA. This was no doubt frustrating for the landlord. However, the remedies for the landlord are set out in the RTA. It is not acceptable for a landlord to threaten making a report to police or the immigration authority.

[NAME]

16 May 2025

__________________________________________________________________________________ 4960756 16

Please read carefully: Visit 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.

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].

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/

Reasons: