What was Tenancy Tribunal case 4569510 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4569510?

Compensation: Rent Compensation: $715.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4569510?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4569510?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11229185-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4569510 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4569510?

Compensation: Rent Compensation: $715.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4569510?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4569510?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11229185-Tribunal_Order_Redacted.pdf.

49A Marellen Drive, Red Beach, Red Beach 0932 Tenancy Tribunal Case 4569510 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4569510 — net $1,235.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Rent compensation	$715.00	refore order the landlord to pay the tenants compensation for the water leak of $715.00. FILING FEE AND COSTS 139.Because the tenants have been mostly successf…
Exemplary damages	$500.00	Exemplary damages
Filing fee reimbursement	$20.44	must award the filing paid to commence the proceeding in the Tribunal, which is $20.44. 140.The landlord has applied for costs for witnesses attending the hear…
Net award	$1,235.44
Total payable by Landlord to Tenant	$1,235.44

Claims and awards in Tenancy Tribunal application 4569510 — net $1,235.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Rent compensation	$715.00	refore order the landlord to pay the tenants compensation for the water leak of $715.00. FILING FEE AND COSTS 139.Because the tenants have been mostly successf…
Exemplary damages	$500.00	Exemplary damages
Filing fee reimbursement	$20.44	must award the filing paid to commence the proceeding in the Tribunal, which is $20.44. 140.The landlord has applied for costs for witnesses attending the hear…
Net award	$1,235.44
Total payable by Landlord to Tenant	$1,235.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants names.
David Berry must pay [The tenant/s] $1,235.44 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,720.00 to [The tenant/s] immediately.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlord and tenant. The tenancy has now ended, but there are disputes in relation to what happened during the tenancy. DescriptionTenant Compensation: Rent compensation$715.00 Exemplary damages$500.00 Filing fee reimbursement$20.44 Total award$1,235.44 Total payable by Landlord to Tenant$1,235.44
I will set out the claims more specifically below, but the more significant claims relate to a water leak. Without getting into detail at this time, the tenants consider there was flooding or some defect causing water ingress into the house, flooding the bottom level of the house. The tenants seek compensation for rent paid on the basis that because of the flooding, they could not use the bottom level of the house.

BACKGROUND

The background in this case is now reasonably involved. I will summarise it briefly here, but in more detail with the respective claims below.
The tenancy commenced on 8 January 2022. The landlord is David Berry, and the two co-tenants, [The tenant/s]. The tenancy agreement provided to the Tribunal by the landlord does not include any inspection report showing the state of the premises at the commencement of the tenancy. However the tenants have provided an inspection report, which records in relation to carpet in the lounge that there were stains present at that time.
During the tenancy there was flooding. This was first notified to the landlord in an email with a photograph, on 12 July 2022.
The tenants have provided a range of other evidence where continued flooding has been raised by them, including with text messages and photographs. There are reasonably extensive communications where the parties were trying to work out the cause or source of the leak.
On 20 February 2023 the tenants gave email notice ending the tenancy as they had found a smaller unit that met their needs.
Both parties filed applications with the Tribunal. The Tribunal (Adjudicator King) considered those applications and issued a decision dated 5 December 2023. In short, the tenants were primarily successful in the claims.
The landlord applied for a rehearing of the 5 December decision. On 29 May 2024 Mr King granted the application for rehearing.
A further hearing was scheduled for 21 August 2024, this time before myself as the adjudicator. Both parties attended the hearing, but unfortunately the hearing needed to be adjourned. The tenant advised he had two witnesses to call, and the landlord had five. The Tribunal had indicated in advance that the witnesses could give their evidence by telephone, but given the circumstances of this case I did not consider that to be appropriate. The hearing was adjourned so the witnesses could attend the hearing and give oral evidence in person.
The hearing was reconvened on 13 December 2024.

DOCUMENTARY EVIDENCE

The Tribunal has received a range of documentary evidence, which I summarise as follows: Watercare report
The landlord supplied a water sample to Watercare for testing, the landlord states that was water he took from the flooded area on the bottom level of the house. The Sample was received by Watercare on 7 August 2023, with the report dated 14 August 2023. The description was described as “clear water” with a fluoride level of 0.84 mg/L. The report carries the following qualification: Analyst’s note: sample was received and tested outside the holding time for fluoride testing as required by the laboratories accreditation. The results cannot be considered accredited and may not represent the Sample composition at the time of collection. Aaron Carpet Cleaning
A statement has been provided from ‘Aaron’ dated 4 June 2024 1 : I cleaned the carpet at 49 Marellen Drive, Read Beach Auckland for Mr David Berry on 15 April 2023, there were stains on the carpet that could not be removed, when I emptied the water from my machine that the water was black in colour which indicated to me that the carpet was not clean. I wrote on my invoice at the time that: Due to the conditions of stains could not get a better result and carpet would need to be replaced. Ray Simpson – Coasties Carpet Cleaning
Mr Simpson provided an email to the tenant, to the extent that his carpet cleaning business had been booked to undertake carpet cleaning for the tenant, but that was cancelled at the request of the landlord who wanted to arrange his own cleaning. 1 The author’s surname is not recorded, nor the company name beyond “Aaron Carpet Cleaning”.
However Mr Simpson states that subsequently, the landlord contacted Coasties Carpet Cleaning to do the work and that: David shortly called after your cancellation, for us to treat the Wood leeching mark. We explained to Mr Berry that wood leeching is not caused from wooden furniture alone it’s only caused when it is sitting on top of a wet surface in this case the leakage from the ranch slider after the storm, he was [unreadable] on blaming the tenant even after us explaining that this was not the tenants fault, as we were not prepared to put blame on the tenant he rudely told us to cancel the job and hang up in our ear. [Tenant’s friend]
A statement has been provided from [Tenant’s friend] dated 2 June 2024. [Tenant’s friend] states she had known the tenants for some years on a personal basis, and that: On visiting them at the end of July 2022, it was very apparent to me from the first moment walking through the door that there was a damp with smell coming from inside the property which was very overpowering to me while standing inside the front door. [The tenant/s] advised me that this smell was due to the lower level area flooding following the recent storm they had experienced. They then took me down to the lower area to show me the cause of the smell and I saw with my own eyes the aftermath of the flooded carpet and surrounding areas.
The author states that she provided the tenants two dehumidifiers, and further that she found the tenants “always ...kept the property in a fastidiously clean state and held high standards in the environment they lived.” Galbraith Plumbing & Drainage Ltd
A statement has been provided from Adam Squire of Galbraith Plumbing & Drainage Limited: Re: Drainage works carried out at 49 Marellen Drive, Red Beach, Auckland and the excavation under house behind block wall. This was excavated the entire width of unit two lower than the internal floor level. All of the excavated spoil was completely dry, ie no signs of any water on or below the surface. There was an existing drain which was blocked. We replaced the strain and left excavation open pending rain. We have plenty of rain over the next few weeks and no water appeared in the excavated trench. This was definitely not where water into dwelling. To date, I am unsure how or where water into dwelling.
Mr Squire also provided an email from 20 May 2024 saying: The top scoria always looks drier as it has airflow. Scoria under the surface always appears darker as it gets no airflow and absorbs any dampness under the surface. Remember the scoria is under the house and a low ground level. Hence the dampness look of the scoria. There is definitely no water in the trench. There was also no water in the trench when the under house area was excavated. The scoria may have been damp when installed and has never 100% dried out. Remember when we collect scoria from quarry yard it has been sitting outside in all weather conditions. In saying that you would not be able to drain a single drop of water from scoria as there is none. Also when scoria was installed and the house, tenants were not there. Alex Johnston – Hire a Hubby
An email has been provided from Alex Johnston of Hire a Hubby. Mr Johnston reports that : I have never said ‘to replace the entire window and / or the ranchslider is needed resolve any water ingress issues’. The only recommendation made was for the rollers to bottom of ranch slider to be replaced. This would allow the slider to shut and latch more correctly. This would intern keep the ranch slider more with a resistant and more secure. The replacement of the rollers and the two patio bolts including adjusting the latching has been done now. The ranch slider works more correctly (work done walk 2022). Looking at the carpet and the location of the stains.. •I cannot see any staining due to water to the carpet in the area from the ranch slider out to the lounge area. Typically water stains splattered and blurred in shape, not a nice sharp edge stain as can be seen on the carpet. If water cause the stain believe the furniture square leg it would not in the exact same square shape of the TV unit leg.[sic] The stain from the leg would have bled out in all directions if any water had filtered through the carpet. The TV unit leg has leaked stain into the carpet leaving a square stain. •The location of the stains are too far away from where the opening section of the ranch slider is for any weather to reach, even if it was left slightly ajar or even fully open. If the weather did ingress through the ranch slider, there would be clear evidence of extensive damage to the carpet all along [sic]
In a further email from 5 April 2024, Mr Johnston advised that he had installed plasterboard in the downstairs area, and that the board was provided by the landlord, but it was” in good condition and showed no signs of water damage, making it suitable for the task”. [Previous tenant 1]
In an email from 26 May 2023, [Previous tenant 1] reports having rented the premises at 49A Marellen Drive from September 2019 to October 2020, and that I never experienced flooding or leaks at this address over this period. My experience at the house was that it was warm and dry and healthy. [Previous property manager]
An email has been provided from [Previous property manager] dated 18 December 2023: I can confirm that I manage the property is located at 49A and 49B Marellen Drive, Red Beach for several years prior to Sun Oaks purchasing the property in 2016. [unreadable] had no prior issues with moisture ingress or leaking windows at the property, prior to your purchase and can’t recall any issues during your ownership. [Previous tenant 2]
And email from [Previous tenant 2] of 21 December 2023 states: When renting 49a Marellen Drive, Red Beach, we never experienced flooding of the bottom or top floors, the house was warm and healthy with the system in the house. We never had any issues with the house. Smart Energy Solutions
The landlord has provided a healthy homes assessment report from Smart Energy Solutions from October 2021.
In short, the report addresses one of the HHS requirements, which relates to drainage, confirming that the property had an efficient drainage system, and there was no surface water evident under the house.

WITNESS EVIDENCE

[Tenant’s friend’s] evidence

[Tenant’s friend] is a friend of the tenants. [Tenant’s friend] advised that she visited the premises around July 2022 (she is not certain of the exact date), and she could smell a damp odour. The tenants took [Tenant’s friend] into the premises and she saw flooding downstairs, the carpet was wet, and the tenants were using towels to contain the flooding.
[Tenant’s friend] states that she offered the dehumidifiers to the tenants to use.
Under cross-examination, Mr Berry referred to the letter [Tenant’s friend] had written of 2 June 2024. [Tenant’s friend] confirmed that she had written that letter. Mr Squire’s evidence
Mr Squire is from Galbraith Plumbing and Drainage.
Mr Squire confirmed that he saw no evidence of flooding at the house when he was there, particularly behind the wall which he had excavated.
Mr Squire states that in hindsight, the drainage works were not necessary.
I asked Mr Squire whether he had seen any flooding or water on the floor inside the house, and he confirmed this was none present when he was there on the approximate 3 occasions he attended the house.
Under cross-examination Mr Squire confirmed he attended the premises well after the bad weather (referred to as Mr Squire as flooding).
Mr Squire confirmed that the wall membrane was old, and accepted it could have leaked, but there was no moisture seen on the scoria or in the exposed drain – Mr Squire said it was very dry.
The tenants referred to a video of the block work in the garage and a white substance on the lower level of the block work wall. Mr Squire did not consider that was evidence of water coming through the blocks, but would likely be absorbing water from the garage floor.
Mr Squire considered a potential cause of flooding in the dwelling was works on the road and flooding arising from that with heavy rain.
Under re-examination Mr Squire confirmed that the level of the garage is below the level of the rest of the house. Mr Squire described seeing a watermark going into the garage from the garage door, but maintained there was no evidence of water going through the wall. Mr Johnston’s evidence
Mr Johnston is from Hire a Hubby, and attended the hearing giving oral evidence.
Mr Johnston states that he was in the house following the first described flooding, but he did not see any evidence of this, nor could he smell any flooding. Mr Johnston confirmed later in his evidence this would have been July 2022.
Mr Johnston confirmed that the mark on the carpet was not consistent with flooding in that area.
I showed a photograph of the window in the lounge on the right-hand side of the ranch slider. I raised with Mr Johnston that my impression is that the photographs showed a gap at the top of the windows. Mr Johnston agreed that the photographs did show a gap and he confirmed that it would allow water to come inside the dwelling with certain weather.
Mr Berry asked whether there was evidence on the carpet of flooding, Mr Johnston considered there was not.
On a further photograph from the tenants, again Mr Johnston confirmed that a close up photograph of the window mechanism showed that it was broken.
The tenants asked why there would be only one leg of the table that caused staining if there was a problem with the the table (why would other legs not cause staining). Mr Johnston advised he did not know, as that is not his area of expertise.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
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.
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.
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. Compensation
With any compensation claim, to receive an order the party must incur a loss. In short, the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must first prove the damage 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.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
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.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional when a person does something, or allows a situation to continue, knowing that damage is a certainty. See the High Court decision of Guo v Korck [2019] NZHC 1541. Exemplary damages
The Tribunal must consider claims for exemplary damages.
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.
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.
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. 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.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act. Rehearings
This matter returns to the Tribunal by way of a rehearing. What this means, is that once the rehearing was granted by Mr King, the tribunal's hearing process starts again. I must consider the matter afresh. I do not follow the findings or decisions Mr King made, I start my consideration of the matter again. That means my decision may be different to that reached by Mr King.

LANDLORDS CLAIMS

Findings on flooding

A number of claims from the landlord centre around water damage or costs associated with addressing that. Therefore I will consider that matter separately.
I accept without reservation that there was flooding to the bottom floor of the premises, none of the parties suggest otherwise. However the dispute in this case is to the cause of the flooding. For the reasons I will explain, I cannot determine what the cause of the flooding is, but I am satisfied that the evidence does not support that the flooding was caused by the tenants for these reasons: a. The evidence is clear that the tenants raised flooding to the bottom floor with the landlord in July 2022. The fact of the tenants proactively raising this with the landlord points to the tenants acting responsibly. b. Similarly the evidence is that the tenants undertook considerable efforts to address the flooding or to avoid damage, such as by using their towels to reduce the spread of the flood and getting dehumidifiers to dry the premises. That would be inconsistent with tenants wishing to cause trouble or inconvenience to the landlord. c. The best expert evidence as to flooding is the evidence of Mr Squire. While Mr Squire’s evidence strongly excludes a cause of a leak in the backfilled block work, it is the case that Mr Squire has not assessed the premises when there was flooding present on the ground floor, and that would therefore have made it difficult for Mr Squire to diagnose another cause of that leak. d. My impression from the communications, is that when the flooding was first reported, that the parties had a good relationship. It makes no sense to me why the tenants would have deliberately flooded the premises to cause damage or loss to the landlord, given their relationship with him. e. The landlords position is that the tenants have caused the flooding to extract money from him, but the history is not consistent with that. The flooding was first notified to the landlord in July 2022, but the first time the tenants sought compensation for that was much later. The tenants only filed their claim with the Tribunal in May 2023. f. Having heard from the tenants, I found them convincing. There is no aspect of the tenants evidence which struck me as being untruthful, and their evidence, which I accept, is that they did not cause the flooding. g. There was a leak in the roof. It is not out of the question that caused the down stairs flooding, certainly I have not received any expert evidence from a roofer or builder discounting that cause. h. There is also clear evidence that water was entering the garage from the roadside. i. The sample from Watercare has no evidential value for these reasons. i. While the report does record that there was 0.84 mg/L of Fluoride found in that sample, the relevance of that has not been established. I have not received any evidence from a qualified person of what that level would show, or would not show. ii. No evidence has been presented from a qualified person around how the sample was collected, and whether it could have been contaminated or a background level of fluoride; and iii. The laboratory has confirmed the sample was not analytical where the report says: Analyst’s note: Sample was received and tested outside the holding time for fluoride testing as required by the Laboratory’s accreditation. The results cannot be considered accredited any may not represent the sample composition at the time of collection. j. The landlord’s position is that there has never been issues with flooding in the premises, as set out statements from people who managed or lived in the premises. That might be the case, but that is not evidence to discount flooding during this tenancy.
I am not in a position to make a finding as to has caused the flooding, the evidence falls short of being able to make that determination. But I am not required to determine the precise or even likely cause, what I am required to consider is whether the tenants are likely to have caused it. The evidence does not support that the tenants have caused the flooding. I note here that water leaks in buildings are well recognised to be notoriously difficult to pinpoint in some cases. Carpet Cleaning
The landlord seeks compensation for carpet cleaning. It was Mr Berry’s position that there were stains on the carpet at the end of the tenancy which were not there before the tenancy commenced. Mr Berry referred to two stains in the lounge and bedroom 1.
Mr Berry states that it would not be reasonable for the next tenant to move in with ‘dead human skin’ which people shed normally.
Mr Berry states that when the carpet was cleaned by ‘Aarons Carpet Cleaning’ the cleaner advised the carpet was very dirty.
The tenants state that they had hired a Rug Doctor and cleaned the carpets themselves. The tenants also describe the water as being very dirty when they cleaned it. The tenants state that it is not known how many tenants lived there prior to the tenants taking the premises over.
The tenants dispute causing the stains (other than the stain under the TV cabinet which they accept is from their table)
I raised with Mr Berry that the tenancy agreement at the start of the tenancy records there were “stains” on the carpet in the lounge at the start of the tenancy. Analysis
The obligation on the tenants at the end of the tenancy was only to return the premises reasonably clean and tidy. The tenants do not need to return the premises in a perfect or immaculate condition. Based on the evidence available, I am satisfied that the tenants have returned the premises reasonably clean.
The evidence is that there were stains on the carpet (other than under the TV cabinet) before the tenancy commenced, and other than the stain from the table, the landlord has not proven the tenants in fact caused further staining.
I am also minded that this was a tenancy over a modest duration. It seems unrealistic to consider that any grubby appearance in the water from the carpet cleaning was solely down to these tenants, given that short period. Further the witness evidence was that these tenants kept the premises clean and tidy.
The tenants produced a video which showed the premises at the end of the tenancy. It was empty and after they had completed their final cleaning. I am confident in saying that the premises were reasonably clean in that video, including the windows (claimed below).
I will address the carpet stain further below, but otherwise I can see no basis to order the tenants to pay carpet cleaning costs. Window cleaning
Mr Berry states that the windows were not clean. When he moved into the premises he put on the heat pump, and the condensation of that showed writing or marks on the window. There were also issues with windows in other areas. Mr Berry stated there was a trick of light, where it could be seen in some lights.
The tenants dispute this claim. The tenants consider that the evidence produced by the landlord around the dirty windows was taken some months after they moved out. Further nothing was mentioned on the day of the handover.
Mr Berry states that on the day of the hand over the landlord has many matters to focus on so it could have been missed. If the premises had been properly cleaned the marks on the window marks would not be seen. Analysis
For the reasons set out above, I find the premises were returned to the landlord reasonably clean. The fact of some marks on the windows is not relevant, because the tenants did not need to return an immaculately clean tenancy to the landlord. This claim is dismissed. Wardrobe damage
The landlord states that there was a leak damaging the wardrobe caused from a leak in the roof. The landlord seeks compensation for repairs to the wardrobe because he says if this had been advised earlier he could have had it repaired.
The tenants say that they did not see evidence of the leak until they removed their belongings when they moved out. Analysis
The tenants are not liable for the leak in the roof, that is the responsibility of the landlord to repair. The tenants were required under the RTA to advise the landlord of a need for maintenance, but that presupposes that they know of it. I accept the tenant’s evidence that they did not know about the damage to the wardrobe until they moved out, so I do not find a breach on the part of the tenants here. Hire a Hubby Charge
The landlord seeks compensation for the fee charged by Mr Johnston ($69.00), when Mr Johnston was asked to attend to assess the stain on the carpet. In that process, Mr Johnston assessed the potential causes of the water leak.
The tenants dispute this claim on the basis that Mr Johnston is a maintenance worker not a carpet expert.
The landlord considers the photograph provided by the tenants of the window with the gap are somehow fraudulent.
The tenants reject the allegation that the photograph of the window was doctored, and produced the timestamped photographs showing a succession of photographs of the house, with the photos of the window in the middle of those photographs, all timestamped at 7 April 2023. Analysis
There is no evidence of the tenants manipulating the photographs, the landlord allegation of that is not proven.
I consider the primary reason Mr Johnston attended the premises was for the purposes of assessing maintenance needs, he assessed the ranch slider. I agree with the tenant that if there were issues with a carpet stain, a maintenance person would not be the ideal expert, it would be a carpet layer, perhaps carpet cleaner.
I can see no basis for ordering this cost be paid by the tenants, so it is declined. Carpet replacement
Mr Berry states that a carpet expert did not consider the stains could be patch repaired, so recommended full carpet replacement.
Mr Berry states that the carpet was down when he purchased the house in 2017, he is not sure when it was first laid. However Mr Berry considers the carpet is in good condition.
The tenants say that they have offered to get contractors to sort out the stain, but the landlord declined that, with the landlord saying he wanted to get his own carpet cleaning company. Analysis
I accept that the carpet stain was caused by the tenant’s furniture (the tenants accept that too).
With claims for damage, the landlord must prove that the damage was caused during the tenancy and not fair wear and tear. I accept that Mr Berry has proven that. The onus then shifts to the tenants to prove the damage was caused carelessly or intentionally.
There is no evidence the tenants intended to cause the stain.
However, I consider the tenants have established that this stain was not caused carelessly. It seems very likely that the stain was from the leg of an item of furniture. That is of course ordinary use of carpet (putting furniture on it). What caused the leaching from the leg onto the carpet is not certain, but it is conceivable it was from moisture on the carpet. I am minded that the evidence does show a significant gap in the window above that table, it is possible that caused some water ingress. While that was not visible when Mr Johnston viewed the area, it is quite conceivable it had dried by then.
Ultimately the evidence does not support that the tenants were careless in any way with damaging the carpet from the furniture, so there is not basis to order compensation for the stain.
The landlord has not otherwise established damage that the tenants are liable for, and must therefore pay for new carpet to the tenancy. Internal door damage
The landlord states there was a small hole, about the size of a 5 cent piece in a bedroom door. Mr Berry says this was about one third of the way up the door on the hall side.
The tenants dispute causing a hole in the door, and question if this may have been caused by the landlord’s movers, but they were clear they did not see or cause any hole.
Mr Berry says that he first noticed the hole 2-3 days after he moved into the premises following the tenancy. Analysis
The onus is on the landlord to first establish that the damage was caused during the tenancy, and I find he has not done that. It is possible it was caused during the tenancy, but also possible that it was caused when the landlord moved in. The onus sits with the landlord to establish his claim. Unnecessary works
The landlord seeks compensation for the drainage and any other unnecessary works at the tenancy relating to the flooding, including replacing concrete. Mr Berry says (understandably) that when the flooding was raised by the tenants, he needed to get drainage specialists to the house (Galbraiths). The advice from Galbraiths was to remove the drainage behind the wall and replace the scoria. As I have raised above, the landlord’s position is that there never was any issue with water coming through the walls, the description of there being flooding caused by a defect in the premises was untrue for Mr Berry.
The tenants say that they had been communicating with the landlord over several months, but ultimately they are not drainage experts and have never claimed where the water was coming from.
Further the tenants note that all the work done at the premises was after they had moved out.
The tenants note that during the tenancy there was an established leak in the roof.
The landlord replied that the leak in the roof was not a ‘torrent’ of water it was a slow drip. Analysis
As I have found above, the evidence falls short of establishing what the cause of the water leak was.
I do not consider it credible to consider that the tenants must be liable for the works simply because the tenants had raised a leak from the wall. As far as I am aware, the tenants have never held themselves out as drainage experts. Any reasonable landlord would have made their own mind up, perhaps after taking advice from the expert (Mr Squire) about whether work is needed.
But I do not find there is any evidence of the tenants causing the water ingress, damage or flooding. The work undertaken by the landlord was at his direction, and I cannot see any basis to find the tenants are required to pay for that work. Watercare charge and travel
The landlord seeks reimbursement for a sample of water the landlord took from the tenancy on the floor. The landlord also claims for travel to take the samples to Watercare. Mr Berry states the samples were on a Sunday, and 1-2 weeks after Cyclone Gabrielle.
The tenants disputes the validity of the water samples, disputing the landlord took these samples as they were not taken when they were there, and they had not received any notice for the visit where the sample had been taken otherwise. Analysis
Given my above finding that the landlord has not proven the tenants caused the flooding, I cannot see any basis upon which the tenants would be liable for these claims.

TENANTS CLAIMS

The tenant’s claims are for a bond refund and exemplary damages for not lodging the bond, and rent compensation. Bond refund
The tenants state that the landlord has not lodged the bond with the Bond Centre. The tenants state that the bond has been in the landlord’s account gaining interest. The bond was lodged at the start of the tenancy.
The landlord does not dispute that he did not lodge the bond, and confirmed it has now been lodged although he had difficulty doing that with the payment system.
The tenants states that the bond lodgement form was completed in 2023 so the intention to lodge the bond was there.
Mr Berry set out for me the significant health problems he was having at the relevant time (I will not set those out in this decision). But Berry states the intention was always to have lodged the bond but he forgot or was unable to do so.
The tenants consider that Mr Berry’s health issues were around the middle of the tenancy. Mr Berry disputed that was the case, and advised that his treatment started much prior to that. Analysis
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, for failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond following the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
There is no doubt that the landlord failed to lodge the bond, and he has therefore committed an unlawful act.
In this case I find that the failure to lodge the bond was intentional. While I could have been persuaded that the landlord had medical issues explaining the late lodgement initially, it is clear that even when the landlord had it pointed out to him that the bond was not lodged, he failed to lodge it.
The evidence is that the Bond was paid at the start of the tenancy, that would be around December 2021 or January 2022.
However the bond was not lodged until 30 August 2024.
The most generous I can view the situation, would be that Mr Berry would have known when Mr King’s order was issued on 5 December 2023, that he had missed lodging the bond with the Bond Centre. That is because, Mr King had made that finding, and ordered exemplary damages to be paid for that breach then. Inexplicably, Mr Berry then did not lodge the bond for over 10 months after that decision was issued. I accept Mr Barry’s evidence that he had difficulties then lodging the bond with the Bond Centre, but that difficulty could have been resolved much sooner than it was. Close to all landlords in New Zealand manage to lodge bonds with the Bond Centre, I cannot see any reason Mr Berry could not also have achieved that.
The effect for the tenants is that there bond has not been kept in the safekeeping of the Bond Centre, which is what the law requires. There are strong interests for tenants generally, and also the general public that the bond system be secure, and that requires compliance with landlords lodging the bond on time. I consider it would be just to make an order in this case.
The maximum level of exemplary temperatures for failing to lodge the bond is $1,500. I consider an order at one-third of the maximum would be reasonable in this case, and that is ordered. Rent compensation
The tenants seek rent compensation of $8,665.80, on the basis that they have been living for some 9 months in premises which were leaking, which was difficult for them. That is a one third rent refund.
Mr Berry maintains that there is no history of moisture ingress or flooding at these premises, so for the reasons as set out above, this is not a flooding where he has breached his obligations. Analysis
It is implicit that the tenants were paying rent for premises that were dry, and without flooding. They did not receive that.
I have not been able to establish the cause of the flooding, but I do not accept that whatever the cause was, that the tenants are responsible for it. The most likely situation is that there was a leak in the premises somewhere, and as it was not caused by the tenants, then the landlord is liable for it. I recognise that Mr Berry will strongly disagree with that, but that is my finding.
I consider it reasonable to require that some compensation be paid to the tenants, because I accept they were not receiving the dry tenancy they contracted with the landlord to receive, and I also accept that the tenants needed to spend considerable time in dealing with the leak such as removing the water and drying the area.
I have determined that compensation of one week of rent would be reasonable, and that is ordered. I am minded that the RTA requires that an injured party mitigate their loss, and there were options available to the tenant to get the landlord to undertake the necessary work to dry the premises, and diagnose the cause of the leak. If the landlord failed to do so, the concept of mitigation would have required the tenants to take further steps, such as by way of application to the Tribunal to make any necessary orders to resolve the issue.
I therefore order the landlord to pay the tenants compensation for the water leak of $715.00.

FILING FEE AND COSTS

Because the tenants have been mostly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.
The landlord has applied for costs for witnesses attending the hearing. Because the landlord has been unsuccessful in his claims, there is no basis for me to order costs to be paid by the landlord.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding and the seek name suppression. In this case the tenants have been successful, and they have applied for name suppression. Tenant name suppression is therefore granted.

Tenancy Tribunal case 4569510 — Exemplary damages at 49A Marellen Drive, Red Beach, Red Beach 0932

At a glance

Tenancy Tribunal case 4569510 — Exemplary damages at 49A Marellen Drive, Red Beach, Red Beach 0932

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

DOCUMENTARY EVIDENCE

WITNESS EVIDENCE

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

FILING FEE AND COSTS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

DOCUMENTARY EVIDENCE

WITNESS EVIDENCE

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

FILING FEE AND COSTS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions