What was the outcome of Tenancy Tribunal case 4522532?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4522532?

Cost Of Replacing Three Roller Blind…: $1,817.22 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Previous Order Application 4123525 D…: $1,984.91 awarded to landlord

What type of tenancy dispute was case 4522532?

The dispute type was not classified.

Where can I read the official tribunal order for case 4522532?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9461798-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4522532?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4522532?

Cost Of Replacing Three Roller Blind…: $1,817.22 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Previous Order Application 4123525 D…: $1,984.91 awarded to landlord

What type of tenancy dispute was case 4522532?

The dispute type was not classified.

Where can I read the official tribunal order for case 4522532?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9461798-Tribunal_Order.pdf.

19 Kaimanawa Street, Paraparaumu, Paraparaumu 5032 Tenancy Tribunal Case 4522532 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4522532 — net $3,822.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application 4123525 dated 28/03/2018	$1,984.91	Previous order application 4123525 dated 28/03/2018
Cost of replacing three roller blinds	$1,817.22	Cost of replacing three roller blinds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,822.57
Total payable by Tenant to Landlord	$3,822.57

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Joshua Alex Kapene must pay Ana Montgomery-Neutze $3,822.57 immediately, calculated as shown in table below.
This order incorporates the Tribunal order made on 28 March 2018 under application 4123525.
All other claims are dismissed.

Reasons

The landlord attended the hearing.
This tenancy ended in 2018. The landlord made an application to the Tribunal for the cost of clean up and repairing damage after the end of the tenancy. An order was made for some of the claims on 28 March 2018 and the hearing was adjourned so the landlord’s insurer could decide if it would accept insurance claims for damage to three roller blinds and to the wooden floors. This hearing was never completed. About 5 years later the landlord filed a second application for claims including replacement blinds and repairs to the floorboards. This was accepted by Tenancy Services, and I have heard it. The previous order made in 2018 has been incorporated into this order for enforcement purposes.
Because this application was filed more than two months after the end of the tenancy the usual service rules no longer apply. Personal service was attempted but it was not successful. The landlord cannot locate the tenant, despite making all reasonable efforts to do so. I accept the landlord’s evidence that a police investigation, illness, and the service requirements of the RTA got in the way of the application being filed any sooner. The landlord still has two genuine claims that were not finalised in 2018. I make a direction that service be dispensed with. See section 91A(2), 91B Residential Tenancies Act 1986 (RTA).

Can I refund the bond?

The landlord has claimed the refund of the bond, but this was refunded in 2018 after someone forged the landlord’s signature on the bond refund form. This was considered by the police at the time but no charges were laid. This means there is no bond at the Bond Centre for me to refund. I note that the landlord has not lost money, because the bond money belongs to the tenant.

Can I make orders about enforcement?

The landlord has claimed the balance owed under another Tribunal order which has already been enforced. I have no jurisdiction over this. The landlord must talk to the Ministry of Justice Collections Team about her options.

Can the Tribunal order compensation and exemplary damages for stress?

There is a claim for compensation and exemplary damages because the tenant did not pay his rent arrears as per the attachment order, because he did not communicate with the landlord, and because of the fraudulent bond refund. All of this caused stress for the landlord. I cannot make these orders because the RTA does not specify these actions as a breach. This claim is dismissed.

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

The landlord has claimed the cost of gardening and lawns. This claim has already been decided in application 4123525. I cannot reconsider this claim.
There is a claim for mileage for “five return trips” to the house post eviction. I find this claim has not been proved because I have not been provided with any receipts. This means the landlord has not proved there was a loss. This claim is dismissed.
The claims for the garage door lock and the washing line are dismissed. I have not been provided with any invoices so there is no proof of loss.

Should the tenant pay for three replacement blinds?

There is a claim for replacement blinds. 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), 40(4) and 41 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.
The landlord has claimed $1,817.22 for the cost of replacing three blinds at the end of the tenancy. I have a property condition report from the start of the tenancy which does not record any damage to the blinds. The landlord provided photos showing the blinds were very stained at the end of the tenancy. I am persuaded the damage happened during the tenancy. It seems most likely to me that the damage was intentional.
I have a quote for the replacement blinds. The insurer accepted a claim for replacing the stained blinds and paid the landlord a small amount, less the $400 excess.
As I have deemed that the damage was intentional I am able to award the cost of remediation even though there has been a cash settlement. This is because insurance pay-outs do not reduce a party’s liability for damage where the damage is intentional (Anderson v James 1908 28 NZLR 34). This is the case even if there is some double recovery. The amount ordered is proved.

Should the tenant pay for repairs to the floorboards?

There is a claim for $1,200 which is for three lots of insurance excess for damage to the wooden floorboards. The property condition report does not note any damage to the floorboards at the start of the tenancy. At the end of the tenancy the landlord’s insurer accepted a claim for reparation, so I am persuaded the damage was done during the tenancy. I have not been provided with any photos of the damage. Without photos I am reluctant to decide that the damage was intentional. It seems most likely to me the damage – which was in four different rooms/areas – was careless rather than accidental.
It is important to note that the damage to the house happened in 2017 or 2018. This is because the law relating to careless damage has changed significantly since the tenancy ended. Where the damage was careless, and occurred before 27 August 2019, the case of Holler and Rouse v Osaki [2016] NZCA 130 applies.
In Osaki, the Court of Appeal held that provisions in the Property Law Act 2007 which relate to commercial tenancies also applied to residential tenancies. As a consequence, tenants were not required to pay for the cost of repairing careless damage in a number of circumstances, including where the damage was covered by the landlord's insurance.
In Linklater v Dickison and Others [2017] NZHC 2813, the High Court held that the principle in Osaki applies to any insurance excess, and where the amount claimed is less than the excess and the landlord does not make an insurance claim. The tenant is also protected where the amount of insurance cover is limited to a fixed sum. It is the fact of insurance, not the extent of it, which provides the protection.
This means the claim for the excess for careless damage to the floorboards is not one I can make. The claim is dismissed.
Because the landlord has substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4522532 — net $3,822.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Previous order application 4123525 dated 28/03/2018	$1,984.91	Previous order application 4123525 dated 28/03/2018
Cost of replacing three roller blinds	$1,817.22	Cost of replacing three roller blinds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,822.57
Total payable by Tenant to Landlord	$3,822.57

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Joshua Alex Kapene must pay Ana Montgomery-Neutze $3,822.57 immediately, calculated as shown in table below.
This order incorporates the Tribunal order made on 28 March 2018 under application 4123525.
All other claims are dismissed.

Reasons

The landlord attended the hearing.
This tenancy ended in 2018. The landlord made an application to the Tribunal for the cost of clean up and repairing damage after the end of the tenancy. An order was made for some of the claims on 28 March 2018 and the hearing was adjourned so the landlord’s insurer could decide if it would accept insurance claims for damage to three roller blinds and to the wooden floors. This hearing was never completed. About 5 years later the landlord filed a second application for claims including replacement blinds and repairs to the floorboards. This was accepted by Tenancy Services, and I have heard it. The previous order made in 2018 has been incorporated into this order for enforcement purposes.
Because this application was filed more than two months after the end of the tenancy the usual service rules no longer apply. Personal service was attempted but it was not successful. The landlord cannot locate the tenant, despite making all reasonable efforts to do so. I accept the landlord’s evidence that a police investigation, illness, and the service requirements of the RTA got in the way of the application being filed any sooner. The landlord still has two genuine claims that were not finalised in 2018. I make a direction that service be dispensed with. See section 91A(2), 91B Residential Tenancies Act 1986 (RTA).

Can I refund the bond?

The landlord has claimed the refund of the bond, but this was refunded in 2018 after someone forged the landlord’s signature on the bond refund form. This was considered by the police at the time but no charges were laid. This means there is no bond at the Bond Centre for me to refund. I note that the landlord has not lost money, because the bond money belongs to the tenant.

Can I make orders about enforcement?

The landlord has claimed the balance owed under another Tribunal order which has already been enforced. I have no jurisdiction over this. The landlord must talk to the Ministry of Justice Collections Team about her options.

Can the Tribunal order compensation and exemplary damages for stress?

There is a claim for compensation and exemplary damages because the tenant did not pay his rent arrears as per the attachment order, because he did not communicate with the landlord, and because of the fraudulent bond refund. All of this caused stress for the landlord. I cannot make these orders because the RTA does not specify these actions as a breach. This claim is dismissed.

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

The landlord has claimed the cost of gardening and lawns. This claim has already been decided in application 4123525. I cannot reconsider this claim.
There is a claim for mileage for “five return trips” to the house post eviction. I find this claim has not been proved because I have not been provided with any receipts. This means the landlord has not proved there was a loss. This claim is dismissed.
The claims for the garage door lock and the washing line are dismissed. I have not been provided with any invoices so there is no proof of loss.

Should the tenant pay for three replacement blinds?

There is a claim for replacement blinds. 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), 40(4) and 41 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.
The landlord has claimed $1,817.22 for the cost of replacing three blinds at the end of the tenancy. I have a property condition report from the start of the tenancy which does not record any damage to the blinds. The landlord provided photos showing the blinds were very stained at the end of the tenancy. I am persuaded the damage happened during the tenancy. It seems most likely to me that the damage was intentional.
I have a quote for the replacement blinds. The insurer accepted a claim for replacing the stained blinds and paid the landlord a small amount, less the $400 excess.
As I have deemed that the damage was intentional I am able to award the cost of remediation even though there has been a cash settlement. This is because insurance pay-outs do not reduce a party’s liability for damage where the damage is intentional (Anderson v James 1908 28 NZLR 34). This is the case even if there is some double recovery. The amount ordered is proved.

Should the tenant pay for repairs to the floorboards?

There is a claim for $1,200 which is for three lots of insurance excess for damage to the wooden floorboards. The property condition report does not note any damage to the floorboards at the start of the tenancy. At the end of the tenancy the landlord’s insurer accepted a claim for reparation, so I am persuaded the damage was done during the tenancy. I have not been provided with any photos of the damage. Without photos I am reluctant to decide that the damage was intentional. It seems most likely to me the damage – which was in four different rooms/areas – was careless rather than accidental.
It is important to note that the damage to the house happened in 2017 or 2018. This is because the law relating to careless damage has changed significantly since the tenancy ended. Where the damage was careless, and occurred before 27 August 2019, the case of Holler and Rouse v Osaki [2016] NZCA 130 applies.
In Osaki, the Court of Appeal held that provisions in the Property Law Act 2007 which relate to commercial tenancies also applied to residential tenancies. As a consequence, tenants were not required to pay for the cost of repairing careless damage in a number of circumstances, including where the damage was covered by the landlord's insurance.
In Linklater v Dickison and Others [2017] NZHC 2813, the High Court held that the principle in Osaki applies to any insurance excess, and where the amount claimed is less than the excess and the landlord does not make an insurance claim. The tenant is also protected where the amount of insurance cover is limited to a fixed sum. It is the fact of insurance, not the extent of it, which provides the protection.
This means the claim for the excess for careless damage to the floorboards is not one I can make. The claim is dismissed.
Because the landlord has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4522532 — Tenancy dispute at 19 Kaimanawa Street, Paraparaumu, Paraparaumu 5032

At a glance

Tenancy Tribunal case 4522532 — Tenancy dispute at 19 Kaimanawa Street, Paraparaumu, Paraparaumu 5032

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Can I refund the bond?

Can I make orders about enforcement?

Can the Tribunal order compensation and exemplary damages for stress?

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

Should the tenant pay for three replacement blinds?

Should the tenant pay for repairs to the floorboards?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Can I refund the bond?

Can I make orders about enforcement?

Can the Tribunal order compensation and exemplary damages for stress?

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

Should the tenant pay for three replacement blinds?

Should the tenant pay for repairs to the floorboards?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions