Tenant's Claim Dismissed for Lack of Evidence

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[2025] NZTT 5109008

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [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.

3. Before I address the specific claims, I will summarise some general legal principles that apply.

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

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

6. 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.

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7. This obligation carried by the applicant is referred to as the “burden of proof”. [NAME], corroborating documents and photographs are an important part of discharging this burden.

8. The tenant submitted substantial documentation with her application. There was also an oral hearing. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.

9. 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.

10. The premises consist of a block of townhouses, built approximately 20 years ago. Each townhouse is made up of six half levels with two bathrooms and three bedrooms.

11. The tenancy began on 17 July 2022 and concluded on 14 December 2024. The weekly rent was $1200.00. The tenant resided there with two flatmates. The owner had a property manager source the tenant. The owner then managed the property thereafter.

12. The tenant claims that the landlord breached her obligations in respect of the Healthy Homes heating requirements. The tenant seeks exemplary damages and a partial rent refund pursuant to this breach.

13. I acknowledge the written material in support provided by both the tenant and landlord during the hearing. The material also included a house floor plan. I assure the parties that all material provided during the hearing has been reviewed.

14. The are a total of three heaters. The heaters are located in the following areas of the townhouse: one in the lower lounge, one in the upper lounge and one in a bedroom. The bedroom and upper lounge (“lounge 1”) are panel heaters. The lower lounge (“lounge 2”) is a 2.4kw compact heater.

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15. The tenant claims that the landlord has breached their obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (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.

16. 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.

17. 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.

18. The HHS does provide exemptions in specific circumstances.

19. 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).

20. The tenant claims the landlord breached Regulation 8 by not having a qualifying heater in the main living room.

21. The landlord gave evidence that the property has the appropriate number and type of heaters and has provided a Healthy Homes assessment report from [COMPANY] dated 30 June 2022 (“the report”). This report was updated on 11 July 2022.

22. I have carefully considered the report. It states that the main living area is lounge number one. The tenant confirmed that lounge one is on floor number three.

23. The heater in that room is a panel heater. The heater was there when the tenant moved into the premises. Lounge two on level two had a different type of wall mounted plug-in heater with a capacity of 2.4kw. The remaining heater was in one of the bedrooms.

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24. The tenant takes issue with the heater in lounge 1. This heater was a 400-watt panel heater. She says that a 400-watt heater is insufficient to heat that space.

25. The tenant also says that the report, as updated on 11 July 2022, is flawed on the basis that the heater in lounge 2 should have been the heater used in lounge 1 for the report to be correct.

26. The tenant did not request her own independent HHS report in support of her claims.

27. The tenant says that the heater was installed in lounge 2 for the purposes of the report. She says that a 2.4kw heater should have been installed in lounge 1. She did not make a written request to the landlord to move the heater moved upstairs.

28. The tenant stated during the hearing that when she first moved in she noticed it was cold. She asked verbally whether there would be adequate heating installed in lounge number 1. It appears the vast majority of the discussions between the parties were not put in writing.

29. The tenant says that she only received the HHS assessment report in March 2025. She confirmed during the hearing that she did not make a formal request for a copy of this document while she was living there.

30. The tenant says that she also raised the heating issue verbally during the first inspection in December 2022. The tenant says that a place this size needed a heat pump but was told by the landlord that due to Body Corporate rules that they could not have a heat pump. The tenant says that she stayed there for two and a half years as she could not afford to move. She says she attempted to move in March 2024 but says could not afford to. She was finally able to move out in December 2024.

31. Notwithstanding the tenant’s complaint that the townhouse was cold there is no evidence before the Tribunal confirming that the tenant served the landlord with a 14-day notice to remedy in respect of the alleged breach of the heating standard. This, in my view, would have been a reasonable starting point. She did not do this.

32. The landlord says she lived in the townhouse for approximately 10 years prior to the tenant moving in. The landlord says that she installed the heater in lounge 2 and once installed the HH assessment report was updated on 11 July 2022. The updated report confirmed that the premises complied. The landlord says that the tenant never mentioned that she was cold in the house.

33. The tenant also claimed that the landlord painted the panel heater in lounge 1 just prior to her moving in resulting in a paint smell.

34. The landlord says that she did not paint the panel heater just prior to the tenant moving in. She says that she painted it approximately 2 years prior to the tenant

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moving in. The landlord was also present when [COMPANY] conducted their assessment on 30 June 2022. The assessor informed her during the inspection of the need for heating in lounge number 2. The landlord purchased a heater and installed it. She then took a photo of the new heater showing it mounted on the wall. The updated report was then issued on 11 July 2022 and confirmed that the premises complied with the HHS requirements. The landlord relied on the accuracy of this report.

35. The landlord believed the tenancy was good. They had a good relationship. The tenant always paid her rent on time and it was not until the final inspection that the relationship deteriorated.

36. The tenant maintains that the compliance certificate as issued by [COMPANY] is flawed.

37. In this case I have determined that the landlord has not committed an unlawful act.

38. I find that the evidence provided by the landlord in response confirms that they took all reasonable steps to comply with the heating requirements.

39. In order for the Tribunal to order exemplary damages I must find the claim proven and then be satisfied that the landlord knew, or ought to have known, that what she was doing was unlawful and took active steps to achieve that purpose.

40. 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 RTA. Those factors include:

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

41. On the balance of probabilities and the evidence provided, I am satisfied that the property complied with the heating standards in regulations 8 – 12 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019. The landlord provided a Healthy Homes assessment report which, in the absence of an independent report provided by the tenant, must be accepted as credible and reliable.

42. There is no evidence before the Tribunal to confirm or suggest that the report is flawed. Furthermore, there is no evidence before the Tribunal which confirms or suggests that the landlord has acted, or intended to act, unlawfully.

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43. For the above reasons the tenant’s claim in respect of a breach of the HHS heating requirements must be dismissed.

44. Because I have dismissed the claim it must therefore follow that the tenant’s claim for a partial rent refund must also be dismissed.

45. Because the application has been unsuccessful I do not reimburse the filing fee.

[NAME]

1 April 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: