Tenant Wins $11,927 for Bond Delay and Premises Repairs

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[2025] NZTT 5027846

TENANCY TRIBUNAL AT NORTH SHORE | TE TARAIPIUNARA RETIHANGA KI ŌKAHUKURA

APPLICANT: [redacted]

Tenants

RESPONDENT: [redacted]

[COMPANY] as agent

Landlord

TENANCY ADDRESS:

[ADDRESS], [POSTCODE]

ORDER

1. [NAME] and [COMPANY] must pay [NAME] and [NAME] $11,927.00` immediately, calculated as shown in the table below:

Description Landlord Tenant Exemplary damages: Fail to meet s.45 obligations $7,200.00 Compensation $4,200.00 Exemplary damages: fail to lodge bond $500.00 Filing fee reimbursement $27.00 Total award $11,927.00 Total payable by Landlord to Tenant $11,927.00

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Reasons:

1. Both parties attended the hearing. The tenants were represented by [NAME]. The landlord was represented by [NAME], a director of [COMPANY].

Claims

2. The tenants claim compensation and exemplary damages for what they say were breaches of the landlord’s obligation to:

a. lodge the tenants’ bond as required;

b. provide the premises in a reasonable state of cleanliness;

c. provide and maintain the premises in a reasonable state of repair

d. ensure that the premises complied with [COMPANY].

e. ensure that the premises complied with smoke alarm requirements

3. The tenants’ application sought work Orders but the tenancy has since ended.

4. Following a hearing on 4 April 2025 the Tribunal issued an Order that:

“Within 14 days of the date of this Order, the landlord must provide to the landlord and to the tenant by e-mail a report assessing the premises’ compliance with [COMPANY] and smoke alarm standards.

Within 7 days thereafter the tenants must advise the Tribunal and the landlord whether they require the hearing to be reconvened to address that report.

If they do, a short teleconference hearing will be arranged for the purpose only of addressing that report. If they do not, the report will be taken as read and an order will be made based on the evidence available, including that report.”

5. The [COMPANY] assessment has been filed. Neither party has sought further hearing time.

6. I apologise to the parties. At the date for compliance with those directions I was on leave which has delayed the making of this Order.

Bond

7. A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

8. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.

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9. The tenants signed the agreement and paid a bond of $4,200.00 on 14 August 2024.

10. After the tenants followed up about receipt of those payments and lodgement of the bond, the landlord confirmed on 21 August 2024, “Apologies, yes I will send back the tenancy this evening. Yes all received and the bond will be lodged to tenancy”

11. The tenants followed up again on 22 September 2024 saying, “Could you please advise if you have lodged our bond as we have not yet received communication of this or signed any forms – do you realise that bonds must be lodged within 23 business days of receiving it? This is getting very time consuming having to follow you up and bring this to your attention.”

12. On 25 September 2024 the landlord e-mailed the tenants, “Attached signed tenancy agreement for your records together with a compliance statement. In addition to this, I have attached the bond lodgement form for you…to fill out, sign and return. I can then lodge the bond…”

13. The bond was lodged on 14 October 2024. It has since been refunded to the tenants.

14. The landlord was required to lodge the bond by 14 September 2024, 23 working days after it was received. The landlord breached that obligation and thereby committed an unlawful act.

15. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

16. [NAME] says that the bond was lodged within 23 working days of the date the signed bond form was returned by the tenants, which he thought was acceptable. In this context it is the act itself ie. not lodging the bond, that must be intentional, not an intention to act unlawfully. The landlord’s failure to deal properly with the tenants’ bond must be regarded as intentional. “Ignorance of the law is no excuse”1

17. The evidence does not show any reasonable basis for the landlord’s failure to lodge the bond or to be so lax in meeting the obligation to provide the tenants with a copy of the tenancy agreement and compliance statement. [NAME] insists that this is not the landlord’s usual practice and that his efficiency was affected family circumstances at the time.

1 See Rawstorne v Westside Management Ltd [2021] NZDC 14114 at para [6]

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18. The effect on the tenants was to require them to be chasing the landlord for compliance with those basic obligations. The evidence suggests that it was not until the tenants continued to chase up the landlord that the bond lodgement process was initiated.

19. I take into account that no actual loss was caused and that the tenants have received their bond back. I do however consider it just and a recognition of the public interest in encouraging landlords to comply with this core obligation, without having to rely on the tenants asserting their rights, to make a modest award of exemplary damages.

Did the landlord meet its obligations under s.45 RTA?

20. Section 45 RTA requires that a landlord

a. provide the premises in a reasonable state of cleanliness (s.45(1)(a));

b. provide and maintain the premises in a reasonable state of repair (s.45(1)(b));

c. comply with all requirements in respect of smoke alarms (s.45(1)(ba))

d. comply with [COMPANY] standards (s.45(1)(bb)).

21. 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 Residential Tenancies Act 1986.

22. The tenants say that the landlord breached each of those obligations

Were the premises provided in reasonably clean condition?

23. The tenants were combining two households into one. Due to issues with movers’ availability, they asked the landlord if they could move in on 11 September 2024 rather than the tenancy start date of 12 September 2024.

24. On 12 September the tenants e-mailed the landlord saying:

“More issues with the house we have noticed:

Rubbish outside around property

Front door lock not working properly - we have put batteries in

Blinds in kitchen, dining, 2 upstairs rooms and the downstairs bathroom broken

Light in kitchen missing couple of spots, upstairs not working

Pantry clip broken

Crack in shower floor very soft (rotting perhaps)

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Downstairs bathroom crack above shower lining

No extractor fan

Upstairs toilet keeps dripping

All blinds are not cleaned…… to be honest with you we are not happy with the condition of how we have moved to your property with all of the issues we are facing. The amount of rent we are paying should not be dealing with this or your tradies coming in as we're trying to move….”

25. [NAME] says that the landlord allowed the tenants to move in early as a favour to them, so should not be penalised for not having been able to have all the cleaning work done before the tenants moved in.

26. Immediate arrangements were made for [NAME] to come in, for an extractor to be installed in the downstairs bathroom, for grounds work to be done, the house to be washed and for a plumber to inspect the shower cracks.

27. On balance, I give the landlord the benefit of the doubt that more (but I suspect not all) of the necessary cleaning work might have been done before the tenancy started, had the tenants not moved in a day early.

28. In my view, the cleaning work that needed to be done after the tenants had moved in is part of the bigger issue of the ongoing need for cleaning and repair/ maintenance work during the tenants’ occupancy and should be taken into account as part of the overall compensation. I do not make a separate award of compensation or exemplary damages for breach of s.45(1)(a).

Were the premises provided and maintained in reasonable condition?

29. The above e-mail from the tenants on 12 September 2024 when they moved in, records the issues they found with maintenance and repair of the premises.

30. The landlord instructed some repair and remediation work to be carried out.

31. On 22 September 2024, the tenants noted progress with the necessary work as follows:

“The issues you have attended to so far and have had tradies come in while we have been in your property:

Extractor fan in downstairs bathroom fitted

Permanent fence on side of house

Lights bought for kitchen and outside lights bracket 4 of each closed brackets

Plumber in to fix leak in downstairs and dripping toilet upstairs

House and deck water blasted and front of house landscaping done

Removed furniture inside your property

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Issues that still need to be attended to:

Lawns still not mowed

Broken blinds upstairs bedrooms, front door blinds, kitchen ranch slider blind, both bathrooms upstairs and downstairs broken

Cupboards in kitchen warped and broken

Cupboards in the bathroom warped

Balustrade still requires tightening

Pantry cupboard clip broken

Cracked shower basin downstairs bathroom- has a very rotten damp smell in the bathroom

No safety latches on windows upstairs

Rubbish still to be removed outside the house

Roof gutters to be cleaned out as they're overflowing with water

Outside drain is blocked- water sits out on the black patio

Toilet holder broken downstairs

Upstairs shower cord broken

Fence out back to be fixed

Ceiling upstairs bathroom flaking needs painting

Oven to be serviced and needs new knobs on dials as it is too hot to touch

Oven vent outside house to be covered.

Please note that the cupboards were not cleaned when we went to put our belongings in. An end of tenancy clean was not performed although you had your cleaners come back and twice while we were moving in.”

The tenants raised again their view that the rent should be abated because of those ongoing issues.

32. On 27 September 2024 a plumber arrived at the premises at 7:30am to assess and replace the oven, after the landlord was advised of a strong smell of gas on 17 September, a handyman came without notice to clear the blocked gutters – to find that the downpipes were blocked as well and an electrician visited.

33. The replacement oven also needed replacing and it is perhaps illustrative of the tenants’ frustrations, that as shown in photographs provided by the tenants, both of the removed ovens were left standing outside the house until taken away with some other of the landlord’s rubbish, many weeks later on 16 November.

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34. I find it proved on balance that the landlord failed to meet its maintenance and repair obligations in the ways recorded in that correspondence. By doing so the landlord has committed an unlawful act.

[COMPANY]

35. Under sections 45(1)(ba) and (bb), a landlord must comply with smoke alarm requirements and [COMPANY].

36. Breach of those obligations is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded.

37. The compliance statement provided by the landlord confirmed that the landlord would meet HH compliance obligations and that the date for compliance was the start date of the tenancy, 12 September 2024.

38. To address the question of the premises’ compliance, the landlord was given the opportunity, after the hearing, to obtain and file a compliance report, which the landlord has helpfully done.

39. The report confirms that the premises:

a. Comply with the HH ventilation, drainage/moisture ingress standards; but

b. Do not meet HH standards for:

i. insulation – because the ceiling insulation was inadequate

ii. heating – because output of the heating provided is 6kW against a required output of 10.1kW

iii. draught stopping – because there are excessive gaps around a fireplace.

c. Do not meet smoke alarm requirements – because an additional smoke alarm is required in the first floor corridor to be sufficiently close to the bedrooms.

40. By breaching those obligations the landlord has committed, in each case, an unlawful act.

Should compensation be awarded?

41. The evidence provided by the tenants and given by the parties during the hearing, satisfies me that the landlord committed multiple breaches of its obligations under s.45 RTA as outlined above.

42. I find it proved that those breaches had a very significant and negative impact on the tenants’ use and enjoyment of the premises. Those impacts arose not only from the direct lessening of the amenity of the premises but also from the

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tenants having to chase up the landlord to have necessary work done and accommodate intrusion by tradespeople so work could be done during the tenancy that ought to have been done before the tenancy began. The tenants also say for example that on occasion, after scheduling work commitments to be able to be at the premises to meet the landlord or tradespeople, the meeting did not take place.

43. With those ongoing repair/ maintenance issues, and having become aware on 7 October 2024 that their bond had still not been lodged, the tenants brought this application to seek orders in respect of the bond, work orders to have necessary repairs completed, redress and permission to end the tenancy on short notice, as they considered it untenable to have to remain living in the premises.

44. The evidence supports the tenants’ assertion that the disruption to their peaceful enjoyment of the premises during the first 6 weeks was almost constant.

45. I find that the tenants are entitled to compensation for the effect on them of the landlord’s breaches.

46. In assessing compensation, I take account of those major intrusions during the early part of the tenancy. The effect of the ongoing issues lessened after that but did continue. The tenants note that through to the end of the tenancy there was some rubbish, including a tyre that the landlord had still not removed, broken blinds were not replaced until 29 October, at the same time when cupboards that were meant to have been repaired before move in, were also repaired (after one had fallen on a child). Curtains that been hung were removed on 17 December because they hadn’t been paid for and were then rehung on 20 December, the fence was not fixed until 3 March 2025.

47. I find that it would be fair to award compensation to the tenants equal to 3 weeks’ rent, in addition to the abatement separately agreed between the parties when the oven was unusable

Should exemplary damages be awarded?

48. The purpose of an award of exemplary damages is not to provide compensation to other party but to punish the unlawful act.

49. The RTA intends that a party should not suffer more than one punitive sanction for essentially the same conduct (see ss. 109E and 137A RTA).

50. Here, the landlord has committed multiple discreet breaches of the landlord’s obligations under s.45(1). Those breaches all constitute unlawful acts under s.45(1A).

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51. The District Court in Gardiner v Upland Bay Investments Limited2 noted:

“[28] [NAME] also submitted, as noted above, that individual awards of exemplary damages should be made for each individual breach, in effect arguing that the statutory maximums as set out in Schedule 1A to the Act should apply not globally, but in respect to each individual breach.

Accordingly, [NAME] sought an award of exemplary damages of $1,000 (the statutory maximum) for [NAME]'s failure to lodge the bond, and $1,000 in exemplary damages for its refusal or omission to issue a receipt for the bond. In respect to the various breaches of building standards or health and safety requirements, he sought a separate award in respect to each failure, of $1,000 for each individual breach.

[29] However, Schedule 1A is explicit, when setting the maximum amount awardable in relation to both s 19 and s 45 breaches, that the maximum applied to the breach of duties (plural), in the case of s 19 and the landlord's failure to meet obligations (also plural) in respect of s 45. The plural forms as adopted by the legislature in both instances indicate that the maximums are in respect to a global or total award for all breaches under the respective sections.”

52. Applying that approach here, I find that if the Tribunal considers it just to do so, after applying the considerations in s.109(3) referred to above, it is able to make a global award of exemplary damages, up to the maximum specified in Schedule 1A, for t h e breaches of s.45(1A) but not separately for each unlawful act. That award may be made in addition to the award for breach of obligations in respect of the bond, which is made an unlawful act under a different provision.

53. Applying the s.109(3) considerations, I have found that the landlord has committed multiple breaches of its obligations to adequately repair and maintain the premises and ensure compliance with [COMPANY] and smoke alarm requirements. I find the breaches to be intentional.

54. The evidence does not disclose a reasonable explanation for those breaches.

55. The breaches have had a significant detrimental impact on the tenants use and enjoyment of the premises, lessening the premises’ utility and causing frustration and stress, as noted in the tenants’ communications with the landlord from early in the tenancy.

2 [NAME] v [COMPANY] DC Wellington CIV-2014-085-13, 27 August 2014

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56. There is a public interest in landlords being encouraged to take these obligations, some of which, such as compliance with smoke alarm requirements, relate to fundamental safety matters.

57. Here, I find that a global award of exemplary damages, of the maximum amount that could be awarded for a single breach, would be just to recognise the extent and number of the landlord’s breaches.

58. As the tenants have substantially succeeded with their claim I reimburse the filing fee.

[NAME]

19 May 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: