Tribunal Dismisses Claims for Damages and Breach of Healthy Homes Standards

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[2025] NZTT 4983350, 5021596

TENANCY TRIBUNAL AT NORTH SHORE | TE TARAIPIUNARA RETIHANGA KI ŌKAHUKURA

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [ADDRESS], [POSTCODE]

ORDER

1. [NAME] and [NAME] to pay [NAME] $75.00 from the bond, for cleaning of cat litter.

2. The Bond Centre is to pay the bond of $2,000.00 (5879406-009) immediately apportioned as follows:

[NAME]: $75.00

[NAME] and [NAME]: $1,825.00

3. The balance of the bond of $100.00 is to remain at the Bond Centre until the landlord’s claim for water arrears has been determined.

4. The landlord’s claims for general cleaning of the premises, damages to the premises and exemplary damages are dismissed.

5. The tenant’s claims for breach of the Healthy Homes Standards and that the premises is an unlawful residential premises are dismissed.

6. The hearing is adjourned part heard.

7. A further 60 minutes is to be allowed for the next hearing of this matter, scheduled before me via teleconference on the next available date no earlier than 10 June

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2025. The purpose of this hearing is to hear the landlord’s claims for water arrears and the tenant’s claims for refund of outgoings.

8. Within 10 working days of the date of this Order, the landlord is to send to the Tribunal via email at [EMAIL] (copying the tenant):

a. A ledger showing the outgoings (water and electricity) charged to the tenant and recording any payments made. This ledger is to also show how the utilities were apportioned between the two units; and

b. The invoices for utilities (water and electricity) for the duration of the tenancy.

9. If the tenant disagrees with any of the calculations in the ledger referred to above, then within 5 working days of receipt of the ledger, the tenant is to provide their own ledger setting out the sums they believe have been charged and paid for utilities for the duration of the tenancy.

Reasons:

1. This is a reserved decision. The hearings for this matter took place on 16 October 2024 and 21 March 2025.

2. Both parties attended both hearings.

3. The landlord has applied outgoings, compensation, exemplary damages, and reimbursement of the filing fee following the end of the tenancy.

4. The tenant has applied for refund of the bond and breach of the healthy home standards. Following the first hearing, the tenant advised that he was claiming payment of rent on the basis that he alleged the premises was an unlawful residential premises and utilities paid on the basis that the utilities paid were not are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.

A. RELEVANT BACKGROUND: 5. The tenancy commenced on 22 August 2023 and ended on 21 August 2024.

6. The tenancy agreement provides that the tenancy was a boarding house tenancy. This is incorrect, the tenant occupied a ‘granny flat’ unit. The tenant did not have access to the other unit.

7. At the first hearing, I advised the parties that I intended to consider whether the premises was an unlawful residential premises within the meaning of section 78A(2) of the Residential Tenancies Act 1986 (RTA) and the hearing was adjourned;

8. Orders were made summonsing representatives from the Council to provide information regarding the premises and to be contactable during the hearing.

mailto:[EMAIL]

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Shortly after this, the tenant advised that they were seeking a full refund of rent paid under section 78A(4) of the RTA and reimbursement of utility costs paid in addition to their claims recorded above.

9. The hearing recommenced on 21 March 2025. In advance of the hearing, two employees of Auckland Council, a Senior Solicitor and a Principal Specialist Planner, provided affidavits. However, they did not attend the hearing.

B. RELEVANT LEGAL CONSIDERATIONS: 10. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil

law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that the party bringing the claim must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

11. 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.

12. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

C. THE LANDLORD’S CLAIMS:

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

13. 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.

14. The landlord says that the tenant did not leave the premises reasonably clean and tidy. The landlord is claiming $568.70 for cleaning. At the first hearing, the landlord confirmed that the cleaning had not been done and the premises had

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been relet. The landlord said the new tenant had been advised that when (or if) the Tribunal ordered the tenant to pay for cleaning, the landlord would arrange for it to be done.

15. I make no award in respect of general cleaning of the premises because I am not satisfied that this work will be done. This claim is dismissed.

16. The landlord also says that the tenant threw cat litter over the deck and is claiming $250.00 and exemplary damages. The landlord provided photographs of the litter. The tenant says they did throw the cat litter over the deck. The landlord says that the litter has not been cleared away as they are waiting for the Tribunal Order. The landlord said that she would clean it and that it would take her 7-8 hours to do so. The tenant disagrees and says that a compensation of $30 would be reasonable.

17. I find that by disposing of the cat litter in that manner the tenant has failed to leave the premises reasonably clean and tidy and has, therefore, breached section 40(1)(c) of the RTA. I consider that compensation is warranted for this breach. However, I do not accept it will take the landlord 7-8 hours to clean the litter. I award $75 calculated as two hours of the landlord’s time at $25 per hour with an allowance for purchasing of cleaning material.

18. The landlord has sought exemplary damages for this breach. Exemplary damages are only available under the RTA for unlawful acts. Not all breaches of the RTA are unlawful acts. Failure to leave the premises reasonably clean and tidy is not an unlawful act. The landlord’s claim for exemplary damages is dismissed.

Is the tenant responsible for the damage to the premises?

19. Sections 40(2)(a), 41 and 49B of the RTA provides 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.

20. 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).

21. 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 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.

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22. 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.

23. 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.)

24. The landlord claims that the tenant has caused the following damages to the premises: damage to the walls; damage to the shower; damage to the toilet seat and removal of a bed cover. The landlord is claiming $250 to repair the walls; $150 to repair the shower; $25.00 for a replacement toilet seat and $100 for the missing be cover.

25. The tenant denies damaging the premises. The tenant says that damage was either wear and tear or was in that condition at the start of the tenancy.

26. The landlord advises that apart from the toilet seat, work has not been done and the premises have been re let “as is”. The landlord advised that the premises have been relet for more than the tenant was paying. In order to award damages, I must be satisfied that the landlord has suffered a loss. Apart from the toilet seat, the repair work has not been done and the alleged damage has not reduced the rental value of premises has not been affected.

For these reasons, I am not satisfied that the landlord has suffered a loss.

27. In respect of the toilet seat, the tenant says that the seat was in poor condition from the start of the tenancy and [NAME] would comment on it. The landlord did not have a photograph of the toilet seat at the start of the tenancy. I am not satisfied that this damage was caused during the tenancy.

28. The landlord’s claim for damages is dismissed.

D. THE TENANT’S CLAIMS: Was the premises an unlawful residential premises?

29. Section 77(2)(ac) of the RTA provides that the Tribunal may declare premises to be unlawful residential premises. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. (See section 78A(2) of the RTA.)

30. The hearing was adjourned on 16 October 2024 to allow for witness summons to be issued to Auckland Council for information on the premises. Prior to the hearing, two employees of Auckland Council, a Senior Solicitor and a Principal Specialist Planner provided signed affidavits. In these affidavits it was confirmed

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that the premises did not require resource consent and that an application for a certificate of acceptance for the premises was currently being processed by the Council.

31. The summons had provided that if the Council chose to provide evidence prior to the hearing, a representative of the Council did not need to attend the hearing. However, the summons was clear that if the Council provided evidence in advance and chose not to send a representative of the Council to the hearing in person, a representative of the Council was to be available during the hearing by telephone.

32. Several attempts were made to contact one of the Council employees who had provided an affidavit during the hearing. However, those calls went to answerphone.

33. The tenant asked if the hearing would be adjourned as the witness from the Council was unavailable. I have decided not to adjourn the hearing for this purpose for two reasons: the affidavits provided by the witness was extensive. While it would have been helpful to helpful to have put questions to them during the hearing, it is unlikely that this information would have resulted in a different decision. Secondly, it is established that there is no requirement to adjourn a hearing that has been started, just to issue a summons. (See Fava v Zaghloul CA111/06.)

34. Based on the information provided by the Council, I am not satisfied that the premises was an unlawful residential premise. This claim is dismissed.

Did the landlord breach the Healthy Homes Standards?

35. 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 says that the landlord has failed to comply with the HHS - heating the HHS - ventilation. The landlord says that the premises did meet the HHS.

36. 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.

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

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

37. As the tenancy commenced on 22 August 2023, the compliance date for the premises was 120 days from that date.

38. The HHS – heating requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.

39. The landlord has provided a healthy homes report dated 16 October 2024 which states the premises meets the HHS. The report includes a picture of a panel heater which the report states meets the HHS.

40. The tenant points out that the HHS report was issued after the tenancy. the landlord says that the report reflects the premises during the tenancy. The tenant says the heater shown in the photograph was not there during the tenancy. The tenant says that the landlord had provided three heaters: two oil heaters and a fan heater. The landlord disagrees and states the heater shown in the report was there during the tenancy and that the premises complied with the HHS – heating.

41. The claim for breach of the HHS is the tenant’s claim and it is the tenant who has the burden of proof. I am not satisfied that the landlord has breached the HHS – heating. This claim is dismissed.

42. The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.

43. The tenant says that the landlord breached this standard because there was no extractor fan in the bathroom. The HHS report states that there is ventilation in the bathroom.

44. The landlord referred to photographs of the switches in the bathroom and says that they connected to the ventilation system. The tenant says that is incorrect and that he knew there was no ventilation and/or that it was not working because when the switches were turned on there was no noise. The landlord says the system is silent and was working during the tenancy.

45. Again, this is the tenant’s claim. Therefore, it is the tenant who has the burden of proof. I am not satisfied that the landlord has breached the HHS – ventilation. This claim is dismissed.

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E. SUPPRESION AND FILING FEE: 46. Neither party has been substantially or wholly successful in their claims.

Therefore, I decline to award reimbursement of the filing fee to either party and the landlord’s application for suppression is dismissed.

F. NEXT HEARING: 47. The parties will be notified of the time and date of the next hearing by Tenancy

Services.

[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: