What was the outcome of Tenancy Tribunal case 4586670?

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

How much money was awarded in case 4586670?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4586670?

The primary dispute was Rent arrears. Related themes: Cleanliness, Property damage, Exemplary damages, Harassment, Unit Titles, Lawns And Garden Work.

Where can I read the official tribunal order for case 4586670?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9358112-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4586670?

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

How much money was awarded in case 4586670?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4586670?

The primary dispute was Rent arrears. Related themes: Cleanliness, Property damage, Exemplary damages, Harassment, Unit Titles, Lawns And Garden Work.

Where can I read the official tribunal order for case 4586670?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9358112-Tribunal_Order.pdf.

28 Cambridge Street, Patea, Patea 4520 Tenancy Tribunal Case 4586670 — Rent arrears

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The landlord’s application for arrears, cleaning, gardening costs and exemplary damages (save for the claims in relation to abusing and threatening the landlord and associates occurring after 2 December 2023) is struck out.
The landlord’s claim for compensation for damage is dismissed.
The landlord’s claim for exemplary damages for the tenant abusing and threatening the landlord and associates occurring after 2 December 2023 is dismissed.

Reasons

This application was heard on 31 August 2023. Both parties attended the hearing.

PROCEDURAL BACKGROUND

This case has had a long background despite the very short length of the tenancy which only lasted from 16 September 2022 to 16 October 2022.
The landlord filed application 4421840 on 16 October 2022 (in this decision I will call this “the Landlord’s First Application”).
On 24 November 2023 the Landlord’s First Application was part heard. That application was for termination for anti-social behaviour, arrears, lawns and exemplary damages stated to be for anti-social behaviour. The tenant did not attend that hearing.
My order following that hearing dated 25 November 2022 (in this decision I will call this the First Order) records the following: i)The landlord withdrew her application for termination and possession. The landlord had possession of the premises and has new tenants living at the premises. ii) The remaining elements on the application as filed were rent arrears, lawns and a claim for exemplary damages which related to behaviour that the landlord says is anti-social. iii) The landlord’s rent summary was not in a standard format and it was necessary to spend a significant portion of time establishing what the landlord’s existing application was actually for. iv) The landlord requested an adjournment to research exemplary damages. v) The hearing was disrupted by both court industrial action and a fire alarm which shortened the hearing time available. vi) At the start of the hearing the landlord presented new information. She presented a claim for compensation following the tenant vacating the premises. Those claims were beyond the scope of the application and so this could not be considered at this hearing. vii) The order sets out that at the start of the hearing I indicated that the landlord must file a new application in relation to her additional claims. However, because this application needed to be adjourned in any event, the landlord could amend the existing application (rather than make a new application) to include her new claims. viii) By 2 December 2022 the landlord must: a) specify in writing to the Hawera Tenancy Tribunal all of the additional claims she is making, including any claims for exemplary damages, and set out the relief she is seeking from the Tribunal and b) file any additional evidence no later than 9 December 2022.
The landlord did not comply with that direction in any way.
The tenant then filed her own application (4495434). In this decision I will call this “the Tenant’s Application”.
A hearing was scheduled to take place for both the Tenant’s Application and Landlord’s First Application on 9 February 2023.
On 7 February 2023 the landlord contacted the Tribunal to ask for the hearing to be cancelled. The Tribunal made investigations with the tenant who confirmed the matter still required consideration.
Later, on 7 February 2023 the Tribunal took the additional step of confirming with the landlord that she was intending to withdraw her case in full. The landlord replied that she wanted to ‘withdraw the application in full’. The Tribunal further confirmed that the Tenant’s Application would still proceed.
The hearing on 9 February 2023 was a case management conference for the Tenant’s Application. This proceeded in the landlord’s absence with the Landlord’s First Application being withdrawn.
The substantive hearing of the Tenant’s Application took place on 1 June 2023. At this hearing the landlord advised the Tribunal that she had filed another application (4586670). I will call this “the Landlord’s Second Application”.
The Landlord’s Second Application at this stage set out the claim to be arrears and damage. At the hearing of the Tenant’s Application, in relation to the Landlord’s Second Claim, the landlord gave the Tribunal additional paperwork. This paperwork included evidence relating to the arrears and damage as well as including claims for cleaning and gardening.
The Landlord’s Second Application was not scheduled to be heard with the Tenant’s Application because the landlord had waited until 25 May 2023 to file it. That meant the landlord was too late to have that application heard at the same time as the Tenant’s Application. At the date of the hearing on 1 June 2023 the tenant had not been served with the Landlord’s Second Application and in any event, due to the lateness of the filing, there would not have been sufficient time scheduled to hear both.
In July 2023 the landlord then sought to add to the Landlord’s Second Application claims for exemplary damages. This was filed with the Tribunal by email in the form of a table which set out claims for exemplary damages together with an analysis. This was served on the tenant by the Tribunal.
Several days prior to the present hearing, on 28 August 2023 at 4.01pm the landlord emailed the Tribunal. Her email asked about witnesses but also set out a list of claims numbered 1-9 and asked the Tribunal to consider the nine categories and award exemplary damages/a pecuniary penalty. This list was included in an email which included the contact details for a witness - which were stated by the landlord to not to be passed to the tenant. Some of the items in the list were additional claims.
Part of the Tribunal’s response to that email was that the application would be limited to that filed.
The new claims could not be served on the tenant in time. A party cannot endlessly add to their application after it has been filed.
As explained at the hearing, while new evidence (photographs, documents, text messages and so on) to support a claim that has already been made may be presented a party must have adequate notice of the claims bought against them.

THE PRESENT CASE

The application I therefore must consider is for: i. Arrears - $514.29 ii. Cleaning - $60 iii. Gardening - $169 iv. Damage to shower door, glass in shed and hole in laundry door - $598 in labour and additional sums of $23 (shower), $63.42 and $79.99 (door) and $57.50, $307.02 (glass replacement) v. Exemplary damages (as set out in the landlord’s exemplary damages table which sets out the exemplary damages she seeks) for:
Shower door pulled apart, hole in laundry door and broken window
Forbidding the landlord to come onto the property
Abusing and threatening the landlord and associates
Not returning the key securely
From the outset it was made clear to the parties that this was a separate hearing to those heard previously. The landlord had not filed all of her documentation relating to this application but wanted to rely on some documents filed in earlier hearings. It is not the Tribunal’s role to search for documents. All documents for an application should be filed for the application itself. The landlord did not have the documents she wanted to rely on to hand.
In the interests of expediency, so the hearing could proceed, I accommodated the landlord and told both parties at the outset and on multiple occasions throughout the hearing that if they wanted me to consider a document from an earlier hearing they must point me to it with some precision and then I would locate it. I made it clear that I would not be returning to the other documents on other applications filed otherwise.
The fact not all documents had been filed for the application in hand made the hearing process slower than usual. The parties agreed that the hearing could overrun to 1pm rather than the 12.30pm as scheduled.
Prior to the hearing I had given a direction that witnesses should attend the hearing. The landlord made a submission that her witness was in Nelson. The landlord made a further request for that witness to be telephoned and given the witnesses’ location I allowed the witness to be telephoned.
It was suggested that the witness be telephoned at the start of the hearing but the landlord requested that she be called later on. I told the landlord she should tell me when she wanted to call the witness. At the end of the hearing the witness was telephoned on several occasions (and the landlord was also permitted to call her on the landlord’s own telephone) she did not answer. On trying an alternate number, the person who answered the telephone told the landlord the witness was driving back to Nelson. The hearing then concluded so it was not possible to hear from this witness.

ABUSE OF PROCESS

During the course of the hearing the tenant set out that it was not fair for the landlord to keep bringing her back to the Tribunal.
At the hearing, I then explained the basic legal principle set out in the case of Henderson v Henderson. This is set out in more detail below.
The legal principle, known as the ‘rule of Henderson v Henderson’ arises from a judgment delivered some 177 years ago, being Henderson v Henderson [1843] 3 Hare 100, but has been applied over the years since.
This principle is that a party is expected, indeed required, to present their entire case during the course of legal proceedings.
The act of raising a line of argument in subsequent proceedings which could and should have been raised in the earlier proceedings constitutes an abuse of process and leaves the subsequent proceedings vulnerable to being struck out. The judgment states: Where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances), permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
The landlord says that she withdrew the Landlord’s First Application as a result of what was said at the first hearing. She says that due to the first hearing she thought she needed to withdraw the Landlord’s First Application and start again. She says she did this after discussing it with Tenancy Services as she was not clear.
I have considered this carefully because there was discussion at the first hearing of the Landlord’s First Application in relation to withdrawing claims. However, discussions around withdrawal at the hearing in 4421840 related to the termination aspect of the application (which was bound to fail because the landlord had possession) and the claim for gardening. This was because the claim for gardening was set out in the application to be $45.00 but the actual figure the landlord wanted to claim was greater and the tenant would need to be served with this updated figure before it could be awarded.
Much of the hearing time at the first hearing was spent discussing the arrears and why the landlord wanted termination and possession given the fact that the tenancy had been terminated and she had possession and had new tenants in the property.
My decision on the arrears was reserved only so I could hear witness evidence from a witness the landlord wanted me to hear from about the return of the key (as this related to the last day of the tenancy). Further, time was spent at the first hearing discussing exemplary damages and what they were. The landlord asked for an adjournment so she could consider exemplary damages which I allowed.
There are claims from the Landlord’s First Application which are now repeated in the Landlord’s Second Application and there are also entirely new claims in the Landlord’s Second Application (and subsequent exemplary damages table) that were not in the Landlord’s First Application.
Arrears, gardening and claim for exemplary damages for anti-social behaviour were included in the First Application first claim and were repeated again in the Landlord’s Second Application.
However, I note that the Landlord’s Second Application in relation to abusing and threatening the landlord also now includes later events. These later events have been dealt with separately.
I find that there was no reason for the landlord to withdraw the Landlord’s First Application and not follow the directions given in my First Order. I do not find it credible that the landlord did not understand the terms of the First Order because its terms are clear despite any discussion at the hearing about how the landlord’s failure to correctly bring her claim could be rectified by bringing a new application.
Not only did my First Order specify what steps the landlord needed to take and by what date, I also explained, in the reasons, why a different approach had been permitted to that discussed at the hearing and I had ordered the landlord to update the Landlord’s First Application rather than file a new one.
It is not credible that the landlord was unaware that the hearing had been adjourned part heard so that she would be returning to the Tribunal to conclude the outstanding part of the case. Not only did the hearing run out of time, the landlord asked for the adjournment so she could better understand exemplary damages. If she wanted to amend part of the application or file new evidence the First Order made that clear how this was to be done and when this had to be done by.
In any event, if the landlord was in any doubt about what she should do the prudent course would be to ask for guidance from the Tribunal. She could have done this in person by not withdrawing her claim in the few days prior to the hearing on 9 February 2023 and by attending the hearing itself.
Tenancy Services often cannot fully advise because they do not have all of the information. I cannot be sure what the landlord told Tenancy Services and, in any event, Tenancy Services’ view does not override an order of the Tribunal. I would however be surprised if Tenancy Services gave advice of the nature the landlord claims.
Withdrawing an entire application in this way and re-filing it is an abuse of procedure.
By withdrawing the entire application and refiling it the landlord was effectively able to start the process all over again rather than have the hearing continue to be heard with the same adjudicator. If this was permitted practice the parties to any part heard application, who thought the process was not going in their favour, could withdraw their application and start again, with the potential to be heard by an entirely new adjudicator. Further that is a significant waste of court and Tribunal resources, not to mention any additional cost of inconvenience arising for the respondent.
Due to the timing of the withdrawal of the Landlord’s First Application and the fact she did not then attend the first hearing dealing with the Tenant’s Application, I find it most likely that the landlord withdrew the Landlord’s First Application, and then failed to progress it in any way until 25 May 2023, because she was under the impression that the tenant may not then proceed with her own claim or that the Tenant’s Application would then end. When it became apparent the tenant’s case would proceed to the substantive hearing regardless, the landlord then decided she wanted to revive her claims.
The landlord has developed a pattern of filing new applications late. This has continued throughout the proceedings, up and until the present hearing date (when the landlord sought to introduce a claims by way of email on 28 August 2023). By this stage the landlord would have been well-aware 1 of the need for claims to be filed with sufficient time for the other party to have notice. 1 At the least, a) from the hearing of the Landlord’s First Application when she tried to add new claims but was prevented from doing so due to lack of notice and b) the hearing of the Tenant’s Application when I could not hear the Landlord’s Second Application despite her giving me some papers because it was not filed in time.
I find her conduct overall indicates a pattern of behaviour designed to vex the tenant. This lack of promptness has also caused the Tribunal to have to hear the same facts on more than one occasion.
Turning to the new claims, the claims for exemplary damages for the damage, forbidding the landlord to come onto the property and the return of the keys all relate to actions that occurred during the course of the tenancy. I see no reason why the landlord could not have included these in the Landlord’s First Application when it was filed, or as part of the second opportunity she was given to include these when I made a direction allowing her an adjournment and an opportunity to amend her claim. She did neither of these things. The rule of Henderson v Henderson applies.
The claim for cleaning and gardening 2 arose once the tenancy had ended. The gardening was done on 5 November 2023. It is not clear precisely what date the cleaning was undertaken and there is no invoice. However, the figure and supporting information relied upon in this application is amongst the papers the landlord wanted me to consider (which I could not) at the hearing on 24 November 2023. There is therefore no reason for me to believe that the cleaning claim arose after 2 December 2023. I therefore find that the landlord could have updated the Landlord’s First Application with the cleaning and gardening claims in line with the First Order.
This leaves the landlord’s claim for damage. On the one hand the landlord’s position in relation to the damage has not changed since the hearing in November 2023 because the documents relied upon are the same. This means the landlord could have updated the Landlord’s First Application with the damages claim in line with the First Order.
However, I have taken a broader approach to the landlord’s claims for damage. This is because the landlord has not yet done the work and the Tribunal on occasion may allow a party to return to the Tribunal if they withdraw an application for damage where, at the time of the hearing, they have not yet remedied the issue (so they are unable to prove loss). An example of when this situation might occur is when the landlord seeks to terminate a tenancy for damage, the damage will not yet have been remedied and therefore the landlord will have limited ability (without the work having been done) to prove their loss, therefore commonly these damage claims are heard at a subsequent hearing to the termination application. 2 I have dealt with the claim for gardening at both paragraph 36 and paragraph 49 because gardening was included in the Landlord’s First Application but the claim required amending as the landlord’s figure in the Landlord’s First Application was not correct.
As at 2 December 2023 it is questionable whether the landlord was in a position to bring her claim for damage because her loss was not yet established (she had not done the work). I have therefore considered the damages claims further below.
The High Court in Body Corporate 375933 v Tenancy Tribunal and Wellington Waterfront Luxury Apartment Limited [2017] NZHC 1619 has confirmed the Tribunal’s ability to strike out applications in appropriate cases.
The application for arrears, cleaning, gardening costs and exemplary damages (save for the claims in relation to abusing and threatening the landlord and associates occurring after 2 December 2023) is struck out.
In any event, even if I was wrong in that conclusion, I would have declined the application, save for the arrears, for the reasons set out in paragraphs 77 to 105.
I must consider the claims for damage and abusing and threatening the landlord and associates after 2 December 2023 as this has not been struck out.

DAMAGE AT THE PREMISES

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
A 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. The tribunal must consider depreciation, taking into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Shower
The landlord says that the tenant damaged the shower which she says is possibly a 1970s shower. I accept this. The door needs gluing back together. The landlord presented a close up photograph of the shower door. The plastic screen has come detached from the metal frame. The tenant says that the shower was broken a bit when she moved in – the issue got worse. She says she didn’t use the shower because she had concerns about it. Later in the hearing, in the context of the exemplary damages claim for damage, the landlord said that the damage to the shower was probably accidental, so it probably was not fair to award exemplary damages for this.
If the tenant had done this damage (the landlord did not present me with any probative evidence as to the condition of the shower at the start of the tenancy and there is conflicting evidence so I make no finding in relation to this) I would consider that the damage is fair wear and tear or at most accidental damage. This means the tenant is not liable for this damage. This part of the case is dismissed. Shed glass
The landlord says that the tenant broke a glass pane in the shed outside. The tenant says she did not – It was like that at the start. The landlord’s written submissions made in relation to her exemplary damages claim set out that she considers this was most likely broken by the tenant’s children.
In the absence of probative evidence concerning the condition of the shed at the start of the tenancy, given the conflicting evidence, I am unable to find that the damage occurred during the course of the tenancy. However, even if I was so satisfied, I would still dismiss the claim. I would find that the damage was most likely to be accidental damage. The glass is at foot level in the garden next to grass and could easily be broken by usual gardening activities: such as mowing or, as the landlord says, by children. This means the tenant is not liable for this damage. This part of the case is dismissed.
The landlord says that the tenant is responsible for a hole in the laundry door. The hole is large. The landlord says that there was no hole at the start of the tenancy. The tenant says she does not know how the hole got there. The first she knew of it was when it was included in the application.
On balance I find it more likely than not that this damage occurred during the course of the tenancy. The tenant’s own evidence is that there was no hole in the door that she knew about until the application - this means there was no hole in the door at the start of the tenancy. The landlord says she took the photographs provided in the days following the tenancy when she returned to the premises after collecting the keys (which were collected from a friend after the tenant had put them under the mat when leaving). On this basis, I find it more likely than not that the damage occurred during the course of the tenancy. The tenant has not disproved liability for the damage and I find, given the size and location of the hole, the damage is likely intentional.
I must then turn to compensation for the door. I decline to award compensation and dismiss the claim because: a. The landlord has not yet remedied the issue and only has a quote available to demonstrate her loss. It has been around 11 months since this tenancy ended. My order of 25 November 2023 records that the property has since been re-tenanted. The landlord’s exemplary damages sheet records her present tenants are dealing with an unsightly hole. The landlord says this is because she has been unable to afford the repair to fix it. However, I consider that if the landlord was going to fix the door it would have been remedied by now. I cannot be satisfied that the landlord has an intention to replace the door and will incur the costs she is claiming. b. In the quote provided the labour cost that the landlord has claimed for the door is not a standalone figure. The labour cost for fixing the door is included with labour costs for fixing the shower and glass and I have dismissed those claims. I cannot guess how much of the labour cost claimed relates to the fixing of the door. c. The door is a hollow core door. Tribunal decisions have frequently considered the life span of such a door to be 20-30 years. IRD depreciation rates set out a depreciation rate of a door of 20 years (albeit it this is for a strongroom door). The house is a 1960s house which my order dated 28 June 2023 ([2023] NZTT 4495434, paragraph 25) described as being in need of a refresh. I asked the landlord if she thought the doors were original and she was unable to give me any details relating to the age of the door. From the photograph provided it appears that the door may be original (the handle is certainly older in style). This means the door may have exceeded its estimated lifespan. Given that the landlord did not provide evidence of the general condition of the door at the start of the tenancy, depreciation would extinguish the claim. There is insufficient evidence for me to account for betterment. The claim is dismissed. d. The claim includes costs for new hinges and a new handle. On the basis of the evidence presented it is not clear why this would be necessary, so the tenant would be liable for these costs. EXEMPLARY DAMAGES FOR ABUSING AND THREATENING BEHAVIOUR TO

THE LANDLORD AND ASSOCIATES

The landlord claims exemplary damages for abusing and threatening the landlord as well as associates.
Her claim includes reference to anti-social behaviour notices. These notices set out the ways in which the landlord considers the tenant to have engaged in anti-social behaviour in telephone calls and face to face meetings with her. Very full supporting details were filed in the Landlord’s First Application.
I see no reason why the claims relating to anti-social behaviour that occurred during the course of the tenancy could not have been bought in the Landlord’s First Application. As noted above, this part of the application is struck out.
In any event, as explained at the hearing, there is no provision in the RTA allowing for exemplary damages in circumstances where a tenant has engaged in threatening to the landlord or her associates. Therefore, I could not have awarded exemplary damages for abusing and threatening the landlord and associates even if proven.
Part of this claim related to an event the landlord says occurred immediately following the tenant’s hearing and a worry the tenant will harass the current tenants. The Tribunal has no jurisdiction to hear such claims because incidents, if proven, have occurred once the tenant/landlord relationship had ended. The landlord’s recourse for unlawful behaviour is the police. Therefore, this part of the claim is dismissed.

FILING FEE

As the claim has been partially struck out and partially dismissed I make no award in relation to the filing fee.

OTHER CLAIMS

I do not need to consider the other claims because they have already been struck them out. This means that I could stop here.
Nevertheless, because I heard the evidence and because the landlord is likely to be unsatisfied with the outcome, I have set out briefly below the conclusions I would have made had the reminder of the application not been struck out. Cleaning claim for $60
At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986 (RTA).
The RTA does not require the premises to be in an immaculate condition - only in a reasonably clean state. A house does not have to be cleaned to a professional standard or be ‘motel’ clean. There is no scientific way to determine what is reasonably clean. What is required is for the Tribunal to evaluate the evidence available and then consider whether the premises would be reasonably clean.
The tenant says she left the property reasonably clean and tidy. The landlord’s evidence included written statements by the cleaner and several photographs.
I find I cannot place weight on the statement by the cleaner about what cleaning she did in order to establish whether the property was reasonably clean and tidy. What amounts to unreasonably clean can mean different things to different people. The cleaner is a friend of the landlord and she was not available for cross examination. The best evidence to allow an objective assessment of cleanliness is photographic evidence.
The photographs provided to support the claim for the $60 cleaning cost were extremely limited and do not amount to an unreasonably clean property. The fact the landlord might have needed to undertake a small amount of cleaning to get it ready for the next occupant does not mean a house is not left reasonably clean.
The claim for cleaning costs of $60 would have been dismissed. Gardening and rubbish removal from the shed - $169
The landlord provided photographs of a garden that I accept is not reasonably tidy as it is overgrown. The landlord says she took the photographs in the couple of days following the tenancy. There are no photographs or other probative evidence of the garden at the start of the tenancy although the landlord provided a statement from a gardener who says he undertook gardening work before the tenancy began. The landlord’s position is that the tenant did no gardening at all during the tenancy. The tenant says she did mow during the tenancy using a relative’s mower.
I would have dismissed the part of the claim relating to gardening because the tenancy ended on 16 October 2022 and the gardening work was not undertaken until 5 November 2022 (approx. 20 days). While this may not, at first, appear to be a significant period of time the tenancy itself was only 31 days long. The tenant is not liable for the upkeep of the garden after the end of the tenancy.
There is no way for me to know, on the basis of the evidence presented, how much additional gardening was caused by this delay.
The claim that some rubbish was left under long grass was not supported by probative evidence so I cannot see the extent of this – if any. However, I accept that the tenant left a small amount of rubbish at the premises as this was supported by the landlord’s photographs. However, I would have made no award in relation to the disposal of the rubbish. The invoice provided to support the claim did not set out the amount, if any, the gardener charged to dispose of the rubbish. Further, in relation to the cardboard boxes and small items of rubbish, a landlord needs to mitigate loss and these could have been disposed of in the usual household rubbish. Exemplary damages for damage to shower, shed and door
As explained at the hearing, there is no provision in the RTA allowing for exemplary damages for damage even where it is found to be intentional. Therefore, this claim would have been dismissed. Exemplary damages for not leaving the key securely as requested
The landlord’s concern is that the tenant left the key to the property under the mat when she left. The tenant sent a text to the landlord about where the key had been left on the day the property was vacated. A number of messages were exchanged with the landlord telling the tenant to leave the key inside and the tenant telling her she would not return. The tenant says the key was left outside for her when she moved in. The landlord said that was different because only the tenant knew about the location of the key.
There is no provision in the RTA allowing for exemplary damages for leaving the key in this way. In any event the landlord’s friend/cleaner was able to collect the key from under the mat on her behalf.
Therefore, this claim would have been dismissed. Exemplary damages for failing to allow landlord to enter upon premises in circumstances where landlord entitled to enter
A landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986. Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A Residential Tenancies Act 1986.
The landlord described how on 28 September 2022 there was a scheduled maintenance visit by her and a roofer. The landlord was also accompanied by her friend and the tenant says that she was not told about the friend also coming and she was unhappy about that.
At the visit the tenant and the landlord got into what the landlord described as a ‘shouting match’ and the landlord says the visit was aborted because of that – she could not continue and had to leave as she felt intimidated and would not go back. The tenant described the landlord as being verbally abusive and yelling. She did not want her children to see that. The disagreement occurred inside the property after some discussion in the lounge and a bedroom concerning the roof. The tenant says that she asked the landlord to lower her voice or leave.
Following this event the tenant sent the landlord an email on 29 September 2023 which recorded a number of issues and concluded that she was not happy with the landlord’s bias, accusation and claims and she is putting the tenancy into the hands of the Tribunal. She records that further maintenance or inspections can be done by a letting agent or someone appointed by Tenancy Services.
The landlord replied on 28 September 2023 but did not address this issue. The landlord then gave notice to the tenant on the basis that she was going to sell the property. The landlord did not give the tenant any further notices requiring access to the property.
I would dismiss this part of the claim. The requirement for exemplary damages is that there has been a failure by the tenant, without reasonable excuse, to allow the landlord to enter upon the premises in any circumstances in which the landlord is entitled to enter under section (2) to (3).
I find that there is insufficient evidence to show that an unlawful act occurred on 28 September 2022. An unlawful act only occurs where the tenant refuses access unreasonably. Where a discussion has turned into a heated argument as described by both parties it would be reasonable for a party to request that the other party leave and for the other party to do so. A tenant is particularly vulnerable if an argument arises in their own home.
The tenant says she was told by Tenancy Services to tell her landlord that she required an agent to be appointed. In the circumstances I find this was a reasonable course of action for the tenant to take in the first instance. If the landlord disagreed with this, and felt she could not approach the issue with the tenant, she could have come to the Tribunal. Instead, she proceeded to terminate the tenancy. In the circumstances, appointing an agent may have been a prudent course for the landlord to have considered. Had the landlord issued a notice to enter in accordance with s 48, RTA and the tenant denied entry the landlord also could have applied to the Tribunal for an order that she be permitted access. No such notices were given.
Therefore, this claim would have been dismissed. Arrears - $514.29
The tenancy began on 16 September 2022 and ended on 16 October 2022. The tenant paid 3 lots of $360, being the weekly rent.
The tenant provided emails which she says means she only had to pay rent from 20 September. The landlord says the email does not mean that, it means that could be the first date rent was paid (meaning the tenant was always 4 days behind).
I find the landlord has the best argument in relation to when the tenant was liable to start paying rent. Her tenancy began on 16 September 2022 and she is liable for rent from this date. That would be the usual situation with residential tenancies in New Zealand.
I have considered the landlord’s rent summary and had this part of the claim not been struck out I would have awarded the sum sought.

SUPPRESSION

Neither party wanted me to consider name suppression so I have not done this.

Tenancy Tribunal case 4586670 — Rent arrears at 28 Cambridge Street, Patea, Patea 4520

Tenancy Tribunal case 4586670 — Rent arrears at 28 Cambridge Street, Patea, Patea 4520

At a glance

Claims & awards

Order

Reasons

PROCEDURAL BACKGROUND

THE PRESENT CASE

ABUSE OF PROCESS

DAMAGE AT THE PREMISES

THE LANDLORD AND ASSOCIATES

FILING FEE

OTHER CLAIMS

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

PROCEDURAL BACKGROUND

THE PRESENT CASE

ABUSE OF PROCESS

DAMAGE AT THE PREMISES

THE LANDLORD AND ASSOCIATES

FILING FEE

OTHER CLAIMS

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions