Published tribunal order
Tenancy Tribunal case 4571329 — Rent arrears at 8 Craig Crescent, Morrinsville, Morrinsville 3300
Decided 3 Oct 2023 · Published 3 Oct 2023 · Application 4571329
- Rent arrears
- Property damage
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the Tenant’s name and identifying details.
- [The tenant/s] must pay Online Rentals Limited T/A Ray White Hamilton As Agent For Hong Cui & Yong Ping Song $1,125.84 immediately, calculated as shown in table below.
Reasons
- Ms Dennison appeared in person for the landlord. [Tenant 1] appeared by telephone. There was no appearance by [Tenant 2].
- The landlord’s claims are that: (in brackets is the compensation sought) i. The tenant owes vacated rent arrears ($1,412.86), ii. ii. The tenant is responsible for damage to the bench top ($598.00), iii. The tenant is responsible for damage to the cook top ($754.98), iv. iv. The tenant is responsible for damage to a light in the bathroom ($218.50), v. The tenant failed to remove all rubbish, which includes green waste ($345.00), vi. The tenant is responsible for damage to windows in the lounge and main bedroom ($287.50, $194.06)
- Ms Dennison advises that the landlord already holds the bond of $1,720.00, and $100.00 paid by the tenant following the end of the tenancy. This will be deducted from any award made.
- The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must establish more likely than not that the tenant has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Rent arrears
- The tenancy commenced on 05 October 2021 and ended on 22 February 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy.
Did the tenant comply with their obligations at the end of the tenancy?
- The landlord claims that the tenant failed to remove all rubbish from the property and is claiming $345.00 which includes dump fees.
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish. See section 40(1)(e)(ii)-(v) of the Act.
- After considering the evidence, which includes photographs taken at the end of the tenancy, and hearing from both parties, I am satisfied that the tenant has failed to remove all rubbish. The amount claimed is reasonable and awarded in full.
Is the tenant responsible for the damage to the premises?
- To succeed with a claim for damage the landlord must satisfy the Tribunal that the damage occurred during the tenancy and is more than fair wear and tear. Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- Once the landlord has established to the required standard that the damage occurred during the tenancy, and that it is more than fair wear and tear, the onus shifts to the tenant who must show that the damage was not the result of a careless or intentional act on their part, or someone at the property with their permission.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. For the purposes of the Act carelessness has its normal meaning of lack of care, negligence, or lack of foresight. The test is objective and not based on the subjective opinion of the tenant or landlord.
- 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.
- 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, which in this case is $650.00 per claim. A tenant is liable for the full cost of repairing damage that they have caused intentionally.
- The landlord is entitled to claim for damage that flows naturally from the breach. Any award of damages must be reasonable and take into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Cook top
- The landlord has produced a photograph of the ceramic cooktop taken at the end of the tenancy showing damage in the form of a large chip on the edge. The landlord states that the cooktop cannot be repaired and was replaced with a similar one for $754.98. The tenant states that the damage was caused during an argument with the other tenant who struck the cooktop with force using a frying pan. I am satisfied that the damage has occurred during the tenancy and that it is more than fair wear and tear. The act of striking the cook top with a pan is an intentional act of damage. Based on this, I am satisfied that the tenant is liable for the full cost of replacing the cooktop. The cooktop was new at the commencement of the tenancy. I make no deduction for betterment or depreciation. Bench top
- The landlord has produced a photograph taken at the end of the tenancy showing a crack to the corner of the stone benchtop. The crack is separate from the chip in the cooktop. The landlord is claiming $598.00 to have the bench repaired. The tenant states that at the commencement of the tenancy, they observed that the area concerned had previously been damaged and repaired, using what they described as a grey / white filler matching the grain of the bench. As the damage had already been addressed, they did not consider it outstanding and therefore did not include it in the pre tenancy inspection report, which the landlord had sent them for completion. Their explanation is reasonable. There are no clear photographs showing the area of bench concerned at the commencement of the tenancy. A close inspection of the photographs taken at the end by the landlord shows remnants the filler described by the tenant.
- The landlord states that while the cooktop was new at the commencement of the tenancy, that the bench top had been in place for some time. Ms Dennison, who conducted a pre tenancy inspection, cannot recall seeing the damage but conceded that it may have existed. The tenant’s explanation is plausible. I am not satisfied that this was damage that occurred during the tenancy; it was likely pre- existing. Windows
- There is a claim for two windows, one in the bedroom, the other in the lounge. The damage to the window in the bedroom was discovered during a routine inspection. The tenant advised the landlord that neighbouring children playing with a ball in a nearby alleyway bordering the property had caused the damage. Ms Dennison states that the tenant advised that they would make the neighbour pay for repair of the window, but that the matter remained unresolved at the end of the tenancy. The landlord arranged for the window to be repaired at a cost of $287.50. Although the tenant may have undertaken to repair the window, are they, in fact, liable? Section 49B of the Act provides that tenants are liable for damage caused by their own acts or omissions or by those of someone at the property with their permission. The children causing the damage where not on the property. There is no evidence that they were the responsibility of the tenant. While this damage may have occurred during the tenancy the tenant is not liable.
- Concerning the other window in the lounge. The tenant states that the window concerned was prone to sticking. Unfortunately, they did not report this to the landlord. The tenant states upon closing the window on this occasion the window cracked at the top. Under section 40(1)(d) of the Act, a tenant has an obligation to report any damage to the landlord as soon as reasonably practicable and may be liable for any damage that results by not doing so. A responsible tenant would have reported the fault with the window to the landlord, thus avoiding possible liability for subsequent damage. I am satisfied that the damage occurred during the tenancy and is more than fair wear and tear, and in this case is more likely than not the result of carelessness, in not reporting the issue when it was discovered. The amount claimed is less than the insurance excess and is awarded in full. Light in bathroom
- In the bathroom there is a pendant light next to the mirror. There is no dispute that it was damaged during the tenancy. Ms Dennison states that they discovered the damage during a routine inspection. The landlord had a replacement fitting, delivered it to the tenant, requesting that they arrange installation. The matter remained unresolved at the end of the tenancy. Like the window in the bedroom, although the tenant may have committed to address the issue, are they liable for not doing so?
- The tenant states that the damage was caused while cleaning the bathroom with a mop, and the handle damaged the light fitting. I am satisfied that the damage occurred during the tenancy, is more than fair wear and tear, and, after hearing from the tenant, was likely the result of carelessness. The landlord is not claiming the cost of replacing the light but is seeking the installation cost of $218.50. This is reasonable and the amount claimed is awarded in full. No deductions are made for betterment or depreciation. Costs
- Because Online Rentals Limited T/A Ray White Hamilton As Agent For Hong Cui & Yong Ping Song has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
- In the case of Erceg v Erceg [2016] NZSC 135 at [2]-[3],[13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.
- Although the landlord has been substantially successful, they do not seek name suppression. The parties have hinted at domestic related conflicts between the tenants, who were in a relationship at the material time. This seems to have been a factor in one of the claims for damage. It is appropriate to exercise the discretion in 95A (4) and suppress the names of both tenants.