Tenant Wins Bond Refund and Exemplary Damages for Cleanliness Breach

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[2025] NZTT 5251219, 5275481

TENANCY TRIBUNAL AT WELLINGTON | TE TARAIPIUNARA RETIHANGA KI TE WHANGANUI-A-TARA

APPLICANT / RESPONDENT:

[redacted]

Tenant

APPLICANT / RESPONDENT:

[redacted]

Landlord

TENANCY ADDRESS: Room 2, [ADDRESS], [POSTCODE]

ORDER

1. [NAME] and [NAME] ([NAME]) must pay [NAME] $1,447.00 immediately, calculated as shown in table below.

Description Tenant Electrical socket $20.00 Exemplary damages: Cleaning $500.00 Bond refund $900.00 Filing fee reimbursement $27.00 Total award $1,447.00 Total payable by Landlord to Tenant $1,447.00

2. All other claims are dismissed.

REASONS

1. The Tribunal must consider an application filed by both the tenant and landlord.

2. Both parties appeared at the hearing in Wellington today.

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BACKGROUND

3. The parties entered into a boarding house tenancy, the agreement records that the tenancy commenced on 7 March 2025. The landlord is “[NAME] and [NAME]”. The sole tenant is [NAME].

4. However I note in his application to the Tribunal [NAME]’s states the tenancy commenced on 23 March 2025 and ended on 22 April 2025.

5. That differs from the landlords application recording the commencement date was 21 March 2025 and end date 13 April 2025.

6. I find that nothing will turn on the precise start and end dates, but what is relevant is that the tenancy was of short duration, about a month or so long.

7. It is plain that things have not gone well at the tenancy, and various disputes arose which I will set out further below.

TENANTS CLAIMS

8. At the hearing, the tenant advanced the following claims:

a. Bond refund.

b. Breach of landlord obligations around cleaning and maintenance

c. Breach of the landlords obligations in relation to contamination

d. Compensation for no stove

e. Compensation for noise from neighbouring tenant

f. Exemplary damages for renting premises with dangerous neighbours.

g. Exemplary damages for breach of quiet enjoyment.

h. Filing fee.

LANDLORDS CLAIMS

9. At the hearing, the applicant confirmed their claims are as follows:

a. Compensation for a replacement bed.

b. Compensation for carpet replacement.

RELEVANT LEGAL CONSIDERATIONS

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

https://www.legislation.govt.nz/act/public/1986/0120/latest/DLM94278.html?src=qs https://www.legislation.govt.nz/act/public/1986/0120/latest/DLM94278.html?src=qs

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

12. That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a 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.

13. 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.

14. 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.

Exemplary damages

15. The Tribunal must consider claims for exemplary damages.

16. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said

Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.

17. 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.

18. Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to:

a. The intent of the person committing the unlawful act.

b. The effect of the unlawful act.

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c. The interests of the landlord or tenant against whom the unlawful act was committed.

d. The public interest; and

e. Whether it is just to make the award.

19. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

ANALYSIS

20. I will consider the parties’ claims in turn.

TENANTS CLAIMS

Tenants claim 1- Breach of the landlord’s obligations

21. The tenant states that the landlord has failed to properly maintain the room, or to provide it reasonably clean, in particular, there was:

a. A broken electrical socket. The socket was not screwed into the wall, and did not work.

b. Graffiti was scratched into a window with what appears to be gang graffiti, and the window would not close properly.

c. Damaged bed in that the mattrass had a large burn on it.

22. The tenant states that when this was raised with the landlord he refused to get these items fixed.

23. In response the landlord states:

a. He sent an electrician to the house during the tenancy, the electrician said that the socket in question was not working, it was not live. The landlord states that the tenant had removed the socket.

b. The landlord states that the window would close properly but accepted it was sticky to close. However the landlord states that the windows were simply dirty, and state that this was not raised by the tenant.

c. In relation to the bed, the landlord disputes that this is a burn, he considers that it was the result of the tenant putting wet items on the bed.

24. Section 66H(2) of the RTA applies. That provision sets out the landlord’s obligations at the start of the tenancy, and that includes that at the start of the boarding house tenancy, the landlord must ensure that “the room is in a reasonable state of cleanliness”.

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25. Section 66I relates to the landlords ongoing obligations, and that includes that the landlord must ensure the premises are kept in a reasonable state of repair.

26. In terms of the electrical socket, the evidence is that this was not working. Because this was a socket in the room, it can be accepted that the tenant would have rented a room with an expectation that the socket was working. I accept the landlord’s evidence that he got an electrician in to fix the socket, but it could not be fixed, but was not otherwise live. I note the tenant advised he could not recall if an electrician attended or not. I consider the tenant should be provided with compensation for a non-working socket (he was renting a room where he could have expected it would be working), and in the circumstances, and given this was a short period, I set that at $20.00. But the evidence is that an electrician was instructed and attended, so I consider on balance the landlord would have complied with any obligation around repair.

27. I note however, I find there is insufficient evidence that the socket was unsafe. The landlord’s evidence was that the electrician confirmed the socket was not live, and otherwise the tenant has accepted that he had removed the socket himself, so that must also be taken into account.

28. In terms of the window, I am not persuaded that claim has been proven. I accept that the window was difficult to close, but the evidence does support that could be closed properly. I decline to make any orders in relation to the mechanical function of the window.

29. But I do accept that the room was not provided in a reasonably clean state. The tenant has taken issue with graffiti that is marked into a window inside his room. I had thought that the graffiti had been scratched into paint, but the landlord stated that it was in fact, dirt. That being the case, the window is extremely dirty, and on considering the photographs, the frame seems dirty, also. I consider the landlord has breached his obligation to provide premises that are reasonably clean. I note that, in order to establish a breach, the tenant does not need to prove that he raised this with the landlord, providing clean premises is a positive obligation on the landlord, and when the landlord rents rooms that are dirty, the landlord breaches that obligation.

30. I have determined that exemplary damages should be ordered in relation to the breach. I consider that the breach is most likely to be intentional. The windows are very dirty, which would be a situation which had arisen over a long period of time. The mere fact that the graffiti was so obvious is testimony to the state of the windows, and also argues against the state of the windows being easily missed. There are strong interest for tenants in renting premises that comply with the minimum expectations including the state of cleanliness of boarding rooms. There are also strong interests for the public that premises

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comply with minimum standards, and I consider would be just to make an order of exemplary damages in this case.

31. The maximum level of exemplary damages that can be ordered for a breach of section 66I is $7,200.00. However, that is a maximum, I must take into consideration the overall circumstances in determining what the proper level of exemplary damages would be. Having undertaken that consideration, I have determined that an award of $500 would be reasonable. I have determined that level, taking into account factors, including:

a. The rental paid for the premises is modest, at $250 per week.

b. The tenancy lasted for only a short period of time, around one month.

c. The established breach is isolated – the only area of breach proven, relates to a reasonably small window.

d. I consider the overall detriment that would have been faced by the tenant would have been limited.

32. In terms of the bed, having considered the photographs, I consider the most likely situation is that the damage represents burn marks. Based on the photographs, it seems likely that the side of the mattress that was burnt, was sitting on the mattress base, because there appears to be a corresponding mark on that base. While I do not consider that it would be reasonable to rent a boarding room with the mattress in that state, I am not persuaded that the tenant has identified any detriment or loss, from which compensation could be ordered. But I am also not persuaded that there was sufficient evidence to show that the landlord knew of the damage to the mattress, so as to find the landlord has intentionally breached any obligation to the tenant. I find therefore, this claim has not been established.

Claim 2 - Renting contaminated premises

33. The tenant claims that the landlord has breached section 45(1AB), in renting him contaminated premises, knowing that the premises are in this repair, as it relates to the bed, window, electrical, socket, stove, and failure to maintain. The tenant seeks exemplary damages.

34. As I explained to the tenant at the hearing, this claim must be declined. Section 45(1AB) and associated section 45(1AAB) relates to the situation where a landlord rents premises that are contaminated with methamphetamine, or any other regulated substance. In fact there are no regulations passed under the RTA around contamination at this time so these provisions cannot be applied in any case.

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Claim 3 - Stove

35. The tenant said that there was an old gas cooker, and it did not work. The tenant said there was a microwave he could use, and he needed to adjust his diet because that was the only way he could cook food. The tenant confirmed he did not raise this with the landlord.

36. The landlord disputes, there are any issues with the stove, and states that even as of the day of the hearing, the stove is working.

37. I find this claim has not been established. I can see no reason why the tenant’s position that the stove is not working, should be preferred to that of the landlord, who says that it is. I have not received any other evidence which would tip the balance one way or the other. But ultimately, with any claim before the Tribunal, it is the applicant who must prove it, and I find this claim has not been proven.

Claim 3 - Compensation for noisy [NAME]

38. The tenant seeks compensation for noise from an upstairs [NAME]. I asked when this was raised with the landlord, and [NAME] advised he was not sure about when this was raised but it may have been raised in the final week. This noise was one of the reasons he decided to leave the premises.

39. The landlord states no concerns were raised around noise by [NAME], but normally when issues are raised by tenants, he does follow up with them.

40. Again, I find this claim has not been established. There is no obligation on a landlord in relation to other residents in boarding houses, making noise of itself, the only obligation is if neighbours were breaching another tenants quiet, enjoyment, and the landlord allowed that to continue. While I accept [NAME]’s evidence that he was disturbed by noise from the [NAME], the evidence falls short of showing that he raised that with the landlord, and that the landlord did nothing about it. When I asked [NAME] when he raised this concern with the landlord, [NAME]’s was uncertain in his evidence, but considered it may have been in the final week of his tenancy. On balance, I find there is insufficient evidence to show that the landlord has breached some obligation to the tenant, around a noisy [NAME].

Claim 4 – Renting premises with other dangerous tenants

41. With this claim, the tenant seeks exemplary damages for renting him a tenancy, where the other tenants were, in [NAME]’s view, dangerous.

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42. As I explained at the hearing, exemplary damages can be ordered if there is a breach of an obligation that the landlord holds to the tenant, but even then it must be a defined unlawful act. I advised [NAME] that I could not see that there was any breach arising in this case under the RTA, and invited him to identify what obligation the landlord has breached, but [NAME] was not able to do that. Certainly, the landlord has obligations in relation to quiet enjoyment. I will consider that in the next claim. But I cannot see that there has been any breach in relation to the matters raised by [NAME] in this claim.

Claim 5 – Exemplary damages for breach of quiet enjoyment

43. [NAME] seeks an order of exemplary damages for a breach of his quiet enjoyment. The tenant states that he has been disturbed by ongoing stereo noise, and general disruption from his neighbours. Again, I asked the tenant whether he had raised this with the landlord, and [NAME] advised he may have raised the issue of the stereo noise in the final week.

44. The landlords position is simply that the tenant has not raised these concerns with him.

45. The tenant has a right of quiet enjoyment under the RTA.

66G Quiet enjoyment

(1) Every tenant of a boarding house is entitled to the quiet enjoyment of the premises, without interruption by the landlord or another tenant of the boarding house.

(2) The landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.

(3) The tenant must not cause or permit any interference with the reasonable peace, comfort, or privacy of any other tenant on the premises.

(4) Contravention of subsection (2) or (3) in circumstances that amount to harassment of a tenant is declared to be an unlawful act.

46. As above, section 66G confirms that the tenant was entitled to quiet enjoyment of the premises, and that then places an obligation on the landlord, that the landlord cannot cause, or permit any interference with the tenants reasonable peace, comfort, or privacy. The problem faced by [NAME] in this case, is that he has not proven that the landlord did permit any breach to occur. [NAME] acknowledged that he did not raise the issues with the landlord, although possibly the issue with the stereo noise was raised toward the end of

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the tenancy. What that means, is, that the only arguable case for a breach of his quiet enjoyment, maybe around the stereo noise.

47. But even the if I accepted that has quiet enjoyment had been breached from the stereo, in order to find exemplary damages should be paid, subsection 4 requires that the breach be in circumstances of harassment of the tenant.

48. The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3) rather than the definition in the Harassment Act. [ADDRESS] in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.

49. In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as:

Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

50. From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment.

51. In this case the evidence falls short of proving the [NAME] was playing her stereo intending to upset [NAME] intentionally. In the absence of a finding of harassment, there is no unlawful act so exemplary damages cannot be ordered.

Claim 6 - Bond refund

52. [NAME]’s paid $1,000 bond at the start of the tenancy. At the end of the tenancy [NAME] said he agreed to release $900 of that to the landlord, but he now regrets agreeing to that, because he does not consider he was liable for the claimed damage.

53. The landlord’s position is that the tenant had damaged the bed and carpet which the landlord needed to replace, and that is what the bond was released for.

https://www.westlaw.co.nz/maf/wlnz/app/document?docguid=I486dfd0ce02e11e08eefa443f89988a0&&src=rl&hitguid=I3a7a0f4ee02e11e08eefa443f89988a0&snippets=true&startChunk=1&endChunk=1&isTocNav=true&tocDs=AUNZ_NZ_LEGCOMM_TOC#anchor_I3a7a0f4ee02e11e08eefa443f89988a0

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54. I will shortly address the landlords claim in relation to the bed, and carpet, but as will be explained further below, that claim was not proven. The end result is that there was no basis for the tenant’s bond to be released to the landlord for those two items, meaning the $900 must now be refunded to the tenant.

LANDLORDS CLAIM

55. The landlord claims that when the premises were returned, there was a wet area on the bed and that the water was dripping through the mattrass and into the carpet and both needed replacement. The landlord has provided some statements from people at the tenancy who assisted with cleaning at the end of [NAME]’s tenancy, and that the bed and carpet was wet.

56. In short the tenants position is that if the bed and carpet was replaced, it was of the landlords election, there was no reason to have changed those items from the tenants actions. The tenant disputes causing water damage to those item.

57. As I have indicated above, photographs have been provided, and I do not accept those photographs, show damage consistent with water damage. I considered a more likely represent damage from a burn, as [NAME] has proposed.

58. I have considered whether the damage shown in the photographs would have arisen from rotting. I do not consider that situation likely, the appearance seems more consistent with a burn mark. I further do not consider that it is likely that rotting would have developed over the short period of the tenancy.

59. But as I have set out above, the onus for proving each claim sits with the person, bringing it, the landlord, as far as the claim for compensation for the bed, and the carpet is concerned. Because the landlord has not established the claim, it must be dismissed.

FILING FEE

60. The tenant has been partly successful in his claim before the Tribunal. I find it reasonable therefore to award the filing fee paid to commence the proceeding in the Tribunal.

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[NAME] 10 June 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].