What was Tenancy Tribunal case 4570457 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 4570457?

Compensation: electricity adjustment…: $132.39 awarded to tenant; Compensation: fire protection fee re…: $54.78 awarded to tenant; Compensation: rent overpayment 3.5.2…: $341.92 awarded to tenant; Electricity Charges 20.3.23 To 2.5.2…: $109.30 awarded to landlord; Fire Protection Charges: $173.00 awarded to landlord; Gas Charges: $145.58 awarded to landlord

What type of tenancy dispute was case 4570457?

The dispute type was not classified.

Where can I read the official tribunal order for case 4570457?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9600773-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4570457 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 4570457?

Compensation: electricity adjustment…: $132.39 awarded to tenant; Compensation: fire protection fee re…: $54.78 awarded to tenant; Compensation: rent overpayment 3.5.2…: $341.92 awarded to tenant; Electricity Charges 20.3.23 To 2.5.2…: $109.30 awarded to landlord; Fire Protection Charges: $173.00 awarded to landlord; Gas Charges: $145.58 awarded to landlord

What type of tenancy dispute was case 4570457?

The dispute type was not classified.

Where can I read the official tribunal order for case 4570457?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9600773-Tribunal_Order_Redacted.pdf.

Unit/Flat 1, 424 Whitmore Road, Tawharanui Peninsula, RD Tenancy Tribunal Case 4570457 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4570457 — net $121.65 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Gas charges	$145.58		Gas charges
Electricity charges 20.3.23 to 2.5.23	$109.30		Electricity charges 20.3.23 to 2.5.23
Fire protection charges	$173.00		Fire protection charges
Compensation: rent overpayment 3.5.23 to		$341.92	rent overpayment 3.5.23 to
Compensation: electricity adjustment to 20.3.23		$132.39	electricity adjustment to 20.3.23
Compensation: fire protection fee refund		$54.78	fire protection fee refund
Total award	$427.88	$529.09
Net award		$121.65
Total payable by Landlord to Tenant		$121.65

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $121.65 immediately, calculated as shown in the table below:
The Bond Centre is to pay the remaining bond of $400.00 ([Bond number suppressed) to [The tenant/s] immediately.
5.23 $341.92 Compensation: electricity adjustment to 20.3.23 $132.39 Compensation: fire protection fee refund $54.78 Gas charges$145.58 Electricity charges 20.3.23 to 2.5.23$109.30 Fire protection charges$173.00 Total award$427.88$529.09 Net award $101.21 Filing fee reimbursement $20.44 Total payable by Landlord to Tenant $121.65

Reasons

Both parties attended the hearing.
The landlord has not filed an application seeking compensation from the tenants or for payment from their bond as required by s.22B. His claims against the tenants are however fully set out in his response to the tenants’ application and the parties’ agree that all substantive claims should be dealt with in this Order.
Of the bond of $2,4000.00, $2,000.00 has been refunded to the tenants with the balance held pending determination of their dispute. Rent
The tenancy began on 20 November 2022 and was for a fixed term ending on 20 May 2023.
In March 2023 the tenants approached the landlord about potentially ending the tenancy before expiry of the fixed term. In a text on 15 March 2023 the landlord noted “On checking I note your lease does not expire until 20th May”. The following day he emailed the tenants, “I'm not of a mind to change the end date of your lease as I already compromised my usual dates and charges to you when we negotiated this lease.”
Later that day the tenants replied, “That's fine and as per our original agreement, so no worries. If by chance while advertising if someone does want to move an earlier we will likely be flexible to work with that.”
On 18 April 2023 the landlord txt, “Will have a couple interested in your apartment from 1st may or thereabouts. Wish to view Sunday 2:00 p.m. which I can do in a few minutes if that's okay”
The tenants indicated that day did not suit for them. The landlord then txt, “I have a potential tenant viewing at 10:00 a.m. this morning so hope that's okay...... looking close to beginning of May so what date suits you...”
The tenants responded, “No problem I’ll likely be there but that's okay we'll get back to you on the date but generally we are flexible.
On 20 April 2023 the landlord inquired, “would 26/04 work for you” He txt again “I note Anzac Day is Tuesday 25/04 so would that be a good day for you to move out as I have a new tenant lined up to start on 28/04 and I leave for [country] on 27/04 so I would like to finalise everything before I go”
The same day the tenants replied, “Will need to confirm if we can move out that early in the next few days, just need time to investigate a few options and we've just returned from [City].” Then, on 24 April, “Will have to stay on until the end of our term at this stage”
The landlord was annoyed, pointing out that the tenants had indicated that they could be flexible. The tenants explained why it would be difficult for them to move out on the suggested date and the correspondence concludes with the following exchange, from the landlord on 24 April, “Not happy as you have consistently asked me to find a new tenant so you can move out earlier. Will wait to see whether you get a rental later today.”
The tenants replied on 25 April, “Yes we did ask that but of course would need more than five days notice to confirm another place to move to. We've done what we can given the circumstances anyway and can vacate on the 2nd”. The landlord replied “okay thanks please photo the meter electricity and gas I shall be in [Country] and back on 8th so we'll finalise everything then.”
The tenants moved out on 2 May 2023. The new tenants arranged by the landlord moved in on 6 May. The tenants had paid rent through to 7 May.
The landlord’s position is that he is entitled to rent up to 6 May when the new tenants began paying him rent. The tenants’ position is that they are entitled to a refund of the four days rent paid from 3 to 6 May inclusive.
I can understand that from the landlord’s perspective the problems arose because he was trying to accommodate the tenants’ initial request that the tenancy be ended before expiry of the fixed term. He is correct that if a tenant does breach a fixed term agreement by ending it early, the landlord is entitled to be compensated for any loss of rents until a new tenancy commences.
However, in my view the key exchange occurred when the tenants confirmed, on 24 April that they would stick to the end date of the fixed term tenancy. The fixed term tenancy remained in place at that point.
Because of the steps taken by the landlord to find alternative tenants, which he would need to have done anyway when the fixed term ended on 20 May, it was he who then asked that the tenants move out earlier than the fixed term end date specified in their agreement. The tenants agreed to that request and a move out date of 2 April was agreed.
The record shows that the tenants were willing to abide by the terms of the fixed term tenancy. I do not believe they can be said to have agreed to move out on 2 May and to continue to pay rent until a new tenancy started. Their evidence, which is not contradicted by the written exchanges, is that they did not know on what date that new tenancy would start.
I do not find the tenants to be in breach of their obligations under the fixed term tenancy. If there is no breach then no compensatory payment beyond the date of the tenants’ occupation of the premises, is warranted.
For those reasons I find that the tenancy ended by agreement on 2 November 2023 and the tenants are entitled to be refunded the 4 days’ rent paid beyond that date. Electricity charges
In February 2023 the tenants raised with the landlord concerns about the electricity charges they were being asked to pay. The tenant noticed that the check meter still appeared to be recording electricity usage even when the electrical supply to the premises was turned off.
The landlord arranged for an investigation by the electrical company which had installed the meter, which found no fault. After further insistence by the tenants, another inspection was done, which discovered that the meters had been wired incorrectly so that the meter for these premises was recording only electricity used by the oven but also electricity used by the emergency lighting, fire system, wastewater system and two power and lighting circuits for another studio apartment. As the electrician’s report notes, “As a result of the incorrect wiring there is no way to know with 100% certainty what the exact power consumption of the two bedroom apartment [these premises] would have been at any given time. However, based on the low power requirements/ consumption of the studio apartment emergency lighting, waste water pump and fire system it would be fair to conclude that the check meter would have most probably resulted in a lower than expected power reading in favour of the tenant of the two bedroom apartment at the expense of the property owner.”
The tenants do not agree noting a variety of factors which they say limited their electricity consumption.
The parties have remained in disagreement since about a fair method for calculating electricity costs attributable to the premises. The tenants agreed with an approach suggested by the electrician of retrospectively applying consumption, based on a test period after the meter had been properly rewired on 20 March 2023.
The starting point is Section 39(3) and (4) which provide that: (3) “The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities. (4) Without limiting the generality of subsection (3), the tenant is responsible for the following charges, incurred during the tenancy, in respect of the premises: (a) electricity and gas:”
It is the landlord’s responsibility have infrastructure in place to ensure that the electricity charges recovered from the tenants, accurately reflects their consumption. The landlord had every reason to believe that he had met that responsibility, with a check meter installed. However, through no fault of his, as is clear from the electrician’s report, for the period the meter was incorrectly wired, that was not possible. I must necessarily favour the tenant’s position on that claim.
In the circumstances here, I do find it appropriate to hold the tenants to their agreement to reimburse the landlord for electricity charges based on the electrician’s proposed model. The electricity adjustment is determined based on the tenants’ application of that formula.
The tenants claim compensation for 2 hours of time involved in dealing with the electricity issue. While I accept that the tenants were put to inconvenience as a result of the faulty wiring and no doubt spent time addressing the issue that they would rather have spent doing something else, there is no evidence of a quantifiable loss on which to make an award of compensation (as distinct for example from if the tenants had paid for inspection of the meter). Any breach by the landlord was entirely unintentional and the landlord arranged an inspection that he was entitled to rely on, once the issue was raised. That claim is dismissed.
There has been no dispute between the parties as regards the balance of the adjustments noted in the above table.
At the end of the hearing the tenants raised a question as to whether they could be required to pay the fire levy which I understand to be a fee for a monthly inspection of fire protection facilities at the block of which the premises form part. Each inspection results in a charge to the landlord which is split between the 3 premises covered by the inspection on a per bedroom basis ie. this 2 bedroom unit is charged 50% of the fee and each of the 1 bedroom units is charged 25%.
There may be a legitimate issue as to whether this is an outgoing that can properly be recovered from the tenants. I have not had evidence or arguments presented in sufficient detail to enable me to make a finding. It is an outgoing relating to the premises that the tenants had previously agreed to pay, was not identified as in dispute until the end of the hearing and is an issue the landlord is entitled to consider and take advice on before being asked to respond to.
It is not a matter that warrants adjournment of the hearing but the tenants are of course entitled to file a further application should they wish. Costs
The relevant provisions of s.102 are as follows: 102 Costs (1) Except in a case to which any of subsections (2), (4), or (5) apply, the Tribunal shall have no power to award costs to or against any party to proceedings before it. (2) The Tribunal may make an order of a kind referred to in subsection (3) in any of the following cases: (a) where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought: (b) where any of the parties was represented by counsel”
While the sums in dispute are ultimately very small, there are legitimate issues between the parties that required a decision of the Tribunal. In my view it cannot be said that the proceedings ought not to have been brought when the tenants have had some claims upheld.
Neither party was represented by counsel.
I find that the exceptions in s.102(2) do not apply in this case so costs cannot be awarded.
The tenants have had claims upheld and are entitled to be refunded the filing fee.

Claims and awards in Tenancy Tribunal application 4570457 — net $121.65 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Gas charges	$145.58		Gas charges
Electricity charges 20.3.23 to 2.5.23	$109.30		Electricity charges 20.3.23 to 2.5.23
Fire protection charges	$173.00		Fire protection charges
Compensation: rent overpayment 3.5.23 to		$341.92	rent overpayment 3.5.23 to
Compensation: electricity adjustment to 20.3.23		$132.39	electricity adjustment to 20.3.23
Compensation: fire protection fee refund		$54.78	fire protection fee refund
Total award	$427.88	$529.09
Net award		$121.65
Total payable by Landlord to Tenant		$121.65

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $121.65 immediately, calculated as shown in the table below:
The Bond Centre is to pay the remaining bond of $400.00 ([Bond number suppressed) to [The tenant/s] immediately.
5.23 $341.92 Compensation: electricity adjustment to 20.3.23 $132.39 Compensation: fire protection fee refund $54.78 Gas charges$145.58 Electricity charges 20.3.23 to 2.5.23$109.30 Fire protection charges$173.00 Total award$427.88$529.09 Net award $101.21 Filing fee reimbursement $20.44 Total payable by Landlord to Tenant $121.65

Reasons

Both parties attended the hearing.
The landlord has not filed an application seeking compensation from the tenants or for payment from their bond as required by s.22B. His claims against the tenants are however fully set out in his response to the tenants’ application and the parties’ agree that all substantive claims should be dealt with in this Order.
Of the bond of $2,4000.00, $2,000.00 has been refunded to the tenants with the balance held pending determination of their dispute. Rent
The tenancy began on 20 November 2022 and was for a fixed term ending on 20 May 2023.
In March 2023 the tenants approached the landlord about potentially ending the tenancy before expiry of the fixed term. In a text on 15 March 2023 the landlord noted “On checking I note your lease does not expire until 20th May”. The following day he emailed the tenants, “I'm not of a mind to change the end date of your lease as I already compromised my usual dates and charges to you when we negotiated this lease.”
Later that day the tenants replied, “That's fine and as per our original agreement, so no worries. If by chance while advertising if someone does want to move an earlier we will likely be flexible to work with that.”
On 18 April 2023 the landlord txt, “Will have a couple interested in your apartment from 1st may or thereabouts. Wish to view Sunday 2:00 p.m. which I can do in a few minutes if that's okay”
The tenants indicated that day did not suit for them. The landlord then txt, “I have a potential tenant viewing at 10:00 a.m. this morning so hope that's okay...... looking close to beginning of May so what date suits you...”
The tenants responded, “No problem I’ll likely be there but that's okay we'll get back to you on the date but generally we are flexible.
On 20 April 2023 the landlord inquired, “would 26/04 work for you” He txt again “I note Anzac Day is Tuesday 25/04 so would that be a good day for you to move out as I have a new tenant lined up to start on 28/04 and I leave for [country] on 27/04 so I would like to finalise everything before I go”
The same day the tenants replied, “Will need to confirm if we can move out that early in the next few days, just need time to investigate a few options and we've just returned from [City].” Then, on 24 April, “Will have to stay on until the end of our term at this stage”
The landlord was annoyed, pointing out that the tenants had indicated that they could be flexible. The tenants explained why it would be difficult for them to move out on the suggested date and the correspondence concludes with the following exchange, from the landlord on 24 April, “Not happy as you have consistently asked me to find a new tenant so you can move out earlier. Will wait to see whether you get a rental later today.”
The tenants replied on 25 April, “Yes we did ask that but of course would need more than five days notice to confirm another place to move to. We've done what we can given the circumstances anyway and can vacate on the 2nd”. The landlord replied “okay thanks please photo the meter electricity and gas I shall be in [Country] and back on 8th so we'll finalise everything then.”
The tenants moved out on 2 May 2023. The new tenants arranged by the landlord moved in on 6 May. The tenants had paid rent through to 7 May.
The landlord’s position is that he is entitled to rent up to 6 May when the new tenants began paying him rent. The tenants’ position is that they are entitled to a refund of the four days rent paid from 3 to 6 May inclusive.
I can understand that from the landlord’s perspective the problems arose because he was trying to accommodate the tenants’ initial request that the tenancy be ended before expiry of the fixed term. He is correct that if a tenant does breach a fixed term agreement by ending it early, the landlord is entitled to be compensated for any loss of rents until a new tenancy commences.
However, in my view the key exchange occurred when the tenants confirmed, on 24 April that they would stick to the end date of the fixed term tenancy. The fixed term tenancy remained in place at that point.
Because of the steps taken by the landlord to find alternative tenants, which he would need to have done anyway when the fixed term ended on 20 May, it was he who then asked that the tenants move out earlier than the fixed term end date specified in their agreement. The tenants agreed to that request and a move out date of 2 April was agreed.
The record shows that the tenants were willing to abide by the terms of the fixed term tenancy. I do not believe they can be said to have agreed to move out on 2 May and to continue to pay rent until a new tenancy started. Their evidence, which is not contradicted by the written exchanges, is that they did not know on what date that new tenancy would start.
I do not find the tenants to be in breach of their obligations under the fixed term tenancy. If there is no breach then no compensatory payment beyond the date of the tenants’ occupation of the premises, is warranted.
For those reasons I find that the tenancy ended by agreement on 2 November 2023 and the tenants are entitled to be refunded the 4 days’ rent paid beyond that date. Electricity charges
In February 2023 the tenants raised with the landlord concerns about the electricity charges they were being asked to pay. The tenant noticed that the check meter still appeared to be recording electricity usage even when the electrical supply to the premises was turned off.
The landlord arranged for an investigation by the electrical company which had installed the meter, which found no fault. After further insistence by the tenants, another inspection was done, which discovered that the meters had been wired incorrectly so that the meter for these premises was recording only electricity used by the oven but also electricity used by the emergency lighting, fire system, wastewater system and two power and lighting circuits for another studio apartment. As the electrician’s report notes, “As a result of the incorrect wiring there is no way to know with 100% certainty what the exact power consumption of the two bedroom apartment [these premises] would have been at any given time. However, based on the low power requirements/ consumption of the studio apartment emergency lighting, waste water pump and fire system it would be fair to conclude that the check meter would have most probably resulted in a lower than expected power reading in favour of the tenant of the two bedroom apartment at the expense of the property owner.”
The tenants do not agree noting a variety of factors which they say limited their electricity consumption.
The parties have remained in disagreement since about a fair method for calculating electricity costs attributable to the premises. The tenants agreed with an approach suggested by the electrician of retrospectively applying consumption, based on a test period after the meter had been properly rewired on 20 March 2023.
The starting point is Section 39(3) and (4) which provide that: (3) “The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities. (4) Without limiting the generality of subsection (3), the tenant is responsible for the following charges, incurred during the tenancy, in respect of the premises: (a) electricity and gas:”
It is the landlord’s responsibility have infrastructure in place to ensure that the electricity charges recovered from the tenants, accurately reflects their consumption. The landlord had every reason to believe that he had met that responsibility, with a check meter installed. However, through no fault of his, as is clear from the electrician’s report, for the period the meter was incorrectly wired, that was not possible. I must necessarily favour the tenant’s position on that claim.
In the circumstances here, I do find it appropriate to hold the tenants to their agreement to reimburse the landlord for electricity charges based on the electrician’s proposed model. The electricity adjustment is determined based on the tenants’ application of that formula.
The tenants claim compensation for 2 hours of time involved in dealing with the electricity issue. While I accept that the tenants were put to inconvenience as a result of the faulty wiring and no doubt spent time addressing the issue that they would rather have spent doing something else, there is no evidence of a quantifiable loss on which to make an award of compensation (as distinct for example from if the tenants had paid for inspection of the meter). Any breach by the landlord was entirely unintentional and the landlord arranged an inspection that he was entitled to rely on, once the issue was raised. That claim is dismissed.
There has been no dispute between the parties as regards the balance of the adjustments noted in the above table.
At the end of the hearing the tenants raised a question as to whether they could be required to pay the fire levy which I understand to be a fee for a monthly inspection of fire protection facilities at the block of which the premises form part. Each inspection results in a charge to the landlord which is split between the 3 premises covered by the inspection on a per bedroom basis ie. this 2 bedroom unit is charged 50% of the fee and each of the 1 bedroom units is charged 25%.
There may be a legitimate issue as to whether this is an outgoing that can properly be recovered from the tenants. I have not had evidence or arguments presented in sufficient detail to enable me to make a finding. It is an outgoing relating to the premises that the tenants had previously agreed to pay, was not identified as in dispute until the end of the hearing and is an issue the landlord is entitled to consider and take advice on before being asked to respond to.
It is not a matter that warrants adjournment of the hearing but the tenants are of course entitled to file a further application should they wish. Costs
The relevant provisions of s.102 are as follows: 102 Costs (1) Except in a case to which any of subsections (2), (4), or (5) apply, the Tribunal shall have no power to award costs to or against any party to proceedings before it. (2) The Tribunal may make an order of a kind referred to in subsection (3) in any of the following cases: (a) where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought: (b) where any of the parties was represented by counsel”
While the sums in dispute are ultimately very small, there are legitimate issues between the parties that required a decision of the Tribunal. In my view it cannot be said that the proceedings ought not to have been brought when the tenants have had some claims upheld.
Neither party was represented by counsel.
I find that the exceptions in s.102(2) do not apply in this case so costs cannot be awarded.
The tenants have had claims upheld and are entitled to be refunded the filing fee.

Tenancy Tribunal case 4570457 — Tenancy dispute at Unit/Flat 1, 424 Whitmore Road, Tawharanui Peninsula, RD

At a glance

Tenancy Tribunal case 4570457 — Tenancy dispute at Unit/Flat 1, 424 Whitmore Road, Tawharanui Peninsula, RD

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions