What was Tenancy Tribunal case 4466922 about?

The tribunal order states: Chrisco Oelofse must pay Linda Gordon As The Trustee For The Star Family Trust

How much money was awarded in case 4466922?

Rent Arrears: $1,345.00 awarded to landlord; Smoke Alarms: $270.00 awarded to landlord

What type of tenancy dispute was case 4466922?

The primary dispute was Rent arrears. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4466922?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9939935-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4466922 about?

The tribunal order states: Chrisco Oelofse must pay Linda Gordon As The Trustee For The Star Family Trust

How much money was awarded in case 4466922?

Rent Arrears: $1,345.00 awarded to landlord; Smoke Alarms: $270.00 awarded to landlord

What type of tenancy dispute was case 4466922?

The primary dispute was Rent arrears. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4466922?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9939935-Tenancy_Tribunal_Order.pdf.

58 Ardern Avenue, Stanmore Bay, Whangaparaoa 0932 Tenancy Tribunal Case 4466922 — Rent arrears

Claims and awards in Tenancy Tribunal application 4466922 — net $1,615.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears (less bond money received by landlord	$1,345.00	Rent arrears (less bond money received by landlord
Replace smoke alarms	$270.00	Replace smoke alarms
Net award	$1,615.00
Total payable by Tenant to Landlord	$1,615.00

Claims and awards in Tenancy Tribunal application 4466922 — net $1,615.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears (less bond money received by landlord	$1,345.00	Rent arrears (less bond money received by landlord
Replace smoke alarms	$270.00	Replace smoke alarms
Net award	$1,615.00
Total payable by Tenant to Landlord	$1,615.00

Order

Chrisco Oelofse must pay Linda Gordon As The Trustee For The Star Family Trust $1,615.00 immediately, calculated as shown in table below.
The tenant’s application is dismissed.
The landlord’s claims in respect of rent arrears and smoke alarms are allowed. The remaining claims are dismissed.

Reasons

Both parties attended the hearing.
The tenant has applied for compensation against the landlord for a breach of obligations.
The landlord has applied for rent arrears and compensation following the end of the tenancy. Background:
The premises consist of a 3-level house with 5 bedrooms. The age of the house is approximately 45 years.
The tenancy began on 23 December 2019 and ended on or about 30 December 2022.
The tenants moved to the property because they owned a place in West Auckland to which their son had bad allergies to. They were advised by a doctor to move as close as possible to the coast.
The longer they lived there it became apparent that the house had a number of issues. They say it became so bad that the window in their son’s room fell out and could not get the window fixed straight away due to COVID restrictions.
The tenants allege that the landlord knew about these issues based on unsubstantiated discussions overheard by the tenant’s wife between the landlord and a handyman. Tenant application:
The tenant claims that the downstairs sink tap kept leaking. They say it was a pre- existing condition.
The landlord says that this was not mentioned to her or did the tenant ever raise this issue.
Hot water cylinder: The tenant claims that the hot water in the house would not heat properly. The tenant had an electrician look at it who said it was defective wiring within the house.
The landlord says she knew nothing about this.
Stair railing gap: The tenant says there was a significant gap at the top of the stairs which presented a safety issue.
The landlord says that there was a gap at the top of the stairs and that she mentioned this to the tenants when they first viewed the house. The tenants accept this.
Kitchen window leak: The tenant says that the kitchen window leaked into the cupboard in the corner of the kitchen. They discovered this as they were moving out.
The landlord does not accept this. She says that the window is not connected to the cupboard.
Stove issue: One of the glass stove top elements was not working when they moved in and still had not been fixed by the time they moved out.
The landlord accepts this claim however responded by stating that each time she tried to arrange for the element to be fixed she was refused entry because of COVID concerns. She says she would have fixed it had she been allowed in the house.
Window issues: The tenants say that all windows in the house were either leaking or had draught issues. The tenants say that the landlord knew of these issues prior to moving in based on discussions between the landlord and the handyman. The tenants say a neighbour also stated that the house had earlier issues.
The landlord does not accept this claim. She says that she did notice some of the seals around the windows and sliding door which needed replacing when she undertook an inspection on or about June 2020.
The landlord provided invoices from Exceed window maintenance confirming that they attended in June and July 2020.
Ranch slider: The tenant says that the ranch slider in the bottom living room was extremely difficult to open. Say it was near impossible to open from the moment they moved in. The tenants say that they mentioned this to the LL during the first inspection in March/April 2020.
The landlord says that she only found out about this when she did her inspection on or about October and November 2021. She also says that she thought the builder had fixed the ranch slider issue as part of this list of work carried out between August and September 2021.
Upstairs deck handrail: The tenants say that the handrail design is either non- compliant or dangerous. They say that the plastic netting (fencing) installed by the landlord is inadequate. The tenants accept that their dogs have at various times pawed the netting. They further say that the bottom wooden railing may have broken and that if they did break it then it was accidental.
The landlord accepts that she installed the plastic netting along with balcony handrailing.
Downstairs bathroom shower: The tenants say that the shower had rotten timber framing and that the gib and framing was rotten and had rotten skirting and mould. The tenant says it became progressively worse while they were living there. They notified the landlord in April 2021 of this issue.
The landlord says that this was on the builder’s list of repairs. She says she found out about this during an inspection in June or July 2021.
Upstairs bathroom bath: This is an old jacuzzi type bath. The tenants say that it has not worked for some time. They further stated that when the bath is filled with water the grime from the jets comes out into the water. There was also a hole in the wall in the upstairs closet of the bathroom.
The landlord says that it was a ‘dead bath’. She says that the tenants knew that the bath was not working properly when they moved in.
Downstairs bathroom taps and toilet: Some of these were not functioning properly. The cold water tap worked but the hot water tap did not work properly. The toilet cistern also suffered from a serious leak with water ending up everywhere through the downstairs bathroom and out to the carpet. On 13 October 2022 the tenant’s wife emailed the landlord stating that the toilet had to be replaced. The tenant made the decision to replace the toilet himself.
The landlord says that both taps have always worked properly and was never advised that they were both not working properly.
The landlord says that she only received notification about the toilet from the tenant’s wife that it needed replacing. The landlord says that she discovered the smashed toilet after the tenants moved out.
Mould in main bathroom: The tenant says that the main bathroom had mould. He says that there were discussions from a handyman and the tenant’s wife stating that there is a potential leak in the roof. The mould was mainly on the ceiling.
The landlord has never had anything mentioned to her about this issue.
The tenant says that the upstairs bedroom which their son was supposed to use was not habitable at all. Issues included the light and the window falling out (hinges and all). They ended up using this room as a storeroom.
The landlord says that she was unaware of this issue. Landlord’s cross application:
Rent arrears: The landlord claims rent arrears of $1345.00 (with the bond deducted).
Garage remotes: The landlord has withdrawn this claim.
Balcony tiles: The landlord says that some of the balcony tiles were missing. She says that there was nothing wrong with the tiles when the tenants moved in.
The tenant says that some of the tiles were lose or not in their place. They notified the landlord of this issue on 24 April 2021. They also spoke with the landlord when she was on site.
Damage to doors in office and linen cupboard door and wardrobe door: The landlord claims $465.00 to have the sliding door tracks replaced and new hinges installed for the office cupboard door.
The tenants say the office door was not on its hinges to begin with. The white sliding door came off the track and fell on their daughter. They had the same issue with the linen door.
Damage to wall: The landlord says that the middle-level bathroom towel rail had been ripped off the wall causing damage to the wall. The landlord further claims that a hole in the middle level toilet wall was caused by the toilet door handle knocking against the wall. The landlord says that the stopper had been left in one of the drawers in the toilet cabinet.
The tenant says the towel rail was not fixed to a beam but rather was just screwed into the gib. They say that it just came lose and eventually came out of the wall. The tenant says that there may have been a stopper at the bottom of the toilet door but cannot recall. They also say that the wall had been previously filled.
Smoke alarms: The landlord says that 3 out of 4 smoke alarms had been removed. The tenant accepts this claim.
Mirror frame in bathroom: The landlord has withdrawn this claim.
Ceiling pendent light in upstairs bedroom. The landlord claims that the light was damaged. She discovered this when tenants had moved out and had to arrange for an electrician to remove the damaged light and fix the wall switch.
The tenants says that this room was to be their son’s bedroom. They say that the light bulb connection was corroded. They placed a timber plank over the switch to stop it being turned on by mistake.
Balcony railing damage: The landlord claims that the tenants damaged the original railing and the plastic netting. She discovered the damage after the tenants moved out of the property. The railing had to be repaired.
The tenants say that the balcony railing and netting was in less than average condition and was not fit for purpose. The landlord says that the tenants also damaged the plastic netting. She says that the netting was installed in 2018 and that the some of the netting had been ripped off. The landlord also claims that the tenant damaged the bottom wooden rail which was subsequently repaired by the tenant.
The landlord claims the repair cost in respect of this.
Sliding door handle: The landlord says claims that after the tenants moved out she noticed the sliding door handle was broken.
The tenant says that they have no knowledge of this issue.
Cleaning at the conclusion of the tenancy: The landlord claims that the entire house outside had to be cleaned. The tenant had the inside of the house professionally cleaned at the conclusion of the tenancy.
The tenant holds the view is that it is not their responsibility to clean the outside of the property.
Water filter system: The landlord claims that the water filter control box had to be replaced at a cost of $763.60. She says that this was because the tenants unplugged the power and damaged the control box. The system was installed in July 2020.
The tenant says that the system was installed while they were there. They say that they switched off the power to the UV light only.
The tenants do not accept this claim.
Loss of rent due to extensive repair work: The landlord claims that she could not rent the premises straight away due to damage caused by the tenant.
The tenants oppose this claim.
Dishwasher repair: The landlord claims that a dishwasher repair technician found that someone had placed rubber strings inside the dishwasher which caused the drain pump to stop working.
The tenants claim that the dishwasher was not working properly and that they cannot be sure how the damage occurred.
Watercare claim: The landlord has withdrawn this claim. Tenant’s application analysis:
Chrisco Oelofse claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must: (b) provide and maintain the premises in a reasonable state of repair Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: “...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...”
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
In the decision that follows I may not have referred to all the considerable oral testimony and other evidence presented, but the parties should know it has been considered where relevant to the applications.
The tenant seeks compensation for a breach of the landlord’s obligations in respect of repairs and maintenance. The tenant’s evidence largely rests on his repair and maintenance quote with accompanying photographic evidence. There was also hearsay of a handyman which was unsupported by any actual evidence.
It is well settled that, the landlord’s obligation under s45 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, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
I have painstakingly considered the tenant’s application and it is my view that the evidence filed does not support the claims made by the tenant.
There is no evidence of the landlord refusing to attend to the matters raised. If the issues were of such a serious nature then the correct approach would have been for the tenant to serve a work order on the landlord which could have then been enforced through the Tribunal in the event of non-compliance by the landlord.
There was no 14-day notice, and the tenant has not provided any corroborating evidence confirming the landlord was put on notice that maintenance was required.
The tenant claims that the balcony handrail was with non-compliant or dangerous. They further claim that there was a gap at the top of the inside stairs. There is no evidence before me which suggests that parts of the premises were unlawful or non- compliant. There is insufficient evidence to show that there was a fault in the premises that the landlord had failed to respond to.
I also acknowledge that the parties were still operating within a COVID environment which frustrated the landlord’s attempts to remedy. I accept the landlord’s evidence in relation to the maintenance of the premises as best she could under the prevailing circumstances at the time. I have also sighted email evidence dated 3 June 2020 between the parties where the landlord asked, amongst other things, if the upstairs window had been fixed yet. The landlord appears to have done what she could under difficult circumstances.
I consider the landlord’s response was to the issues raised was reasonable and the fact that the tenant prepared his own repair and maintenance quote in his capacity as Managing Director of Auckland Flashing Solutions does not detract from this.
In those circumstances, I am not satisfied that the landlord has committed an unlawful act or breached their obligations. Landlord application analysis:
The landlord has filed a claim for rent arrears as part of her application.
The tenancy ended on 30 December 2022. The landlord provided rent records which prove the amount owing at the end of the tenancy.
The tenants say that they stopped paying rent in response to the issues raised.
I find the landlord’s claim for rent arrears proven. Notwithstanding any potential issues with a property tenants cannot make a unilateral decision to stop paying rent.
Having sighted the landlord’s rent ledger I am satisfied that the tenants are responsible for this debt. I acknowledge the bond money which the landlord has deducted from the rent owing.

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

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. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord claims that 3 of the smoke alarms had been removed. The tenant did not replace these. The tenant also accepts this claim.
The amount ordered for the smoke alarms is proved.

Is the tenant responsible for the damage to the premises?

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. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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). See section 49B(3)(a) RTA.
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). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
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. See section 49B(1) RTA.
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.
I have carefully considered the landlord’s claim for damage compensation and find that the alleged damage is fair wear and tear and in line with the age and condition of the property.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
The landlord has filed a number of damage claims against the tenant. In support of her application the landlord also provided a number of photographs of the damaged items.
Having considered these photographs it is my view that the damage claims are not supported by the evidence filed by the landlord.
Putting the correspondence to one side, nothing alters the fact that the landlord has failed to provide full and proper evidence in support of her claims. There are photographs however few if any are dated. The landlord did not undertake a full and proper entry inspection with detailed photographic evidence on the day the tenants moved into the property.
Likewise, she did not conduct a full and proper exit inspection along with photographic evidence on the day these same tenants vacated the property. In an application of this nature one would expect, at the very least, to have before and after photographs along with detailed expense claims. In other words, detailed photographic evidence of the entire premises on move in day and exit day. The Tribunal would then be in a position to compare before and after evidence.
I am far from satisfied that the landlord has discharged her burden. She has not satisfied me that it is more likely than not that the tenants are responsible for remainder of these claims.
Furthermore, I do not accept the landlord’s assertion that she was unable to rent the property for a period of 4 weeks. There is no evidence before me which supports this claim. If the landlord sought to undertake remedial work then that is a matter for her. There is no evidence suggesting that the tenants are the direct cause of the need for this work.
The landlord also seeks compensation for washing the outside of the house. Tenants are only required to leave a property reasonably clean and tidy. They are not responsible for general maintenance on a property beyond this.
The landlord’s claim for rent arrears and missing smoke alarms are proven.
The landlord’s remaining claims are dismissed. Name Suppression:
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act
The tenant applied for non-publication of his name and identifying details. There is nothing to warrant a departure from the principle of open justice. I do not make any suppression orders regarding the publication of this decision.
The tenant sought suppression of his name. However, the tenant has not been wholly or substantially successful.
I have considered if I should grant a name suppression order for the tenant having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the tenant’s name and identifying details outweigh the interest of the open justice reporting principle.
In my view, the tenant’s application for name suppression and identifying details ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the tenant and the public interest, the public interest outweighs the tenant’s interests.
Accordingly, no order is made for suppression of the tenant’s name and identifying details.
The parties should meet the cost of their respective filing fees.

Tenancy Tribunal case 4466922 — Rent arrears at 58 Ardern Avenue, Stanmore Bay, Whangaparaoa 0932

At a glance

Tenancy Tribunal case 4466922 — Rent arrears at 58 Ardern Avenue, Stanmore Bay, Whangaparaoa 0932

At a glance

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions