What was the outcome of Tenancy Tribunal case 4637094?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4637094?

Property Damage: $500.00 awarded to tenant; Property Damage: $50.00 awarded to landlord; Property Damage: $1,492.00 awarded to landlord; Rent Arrears: $397.29 awarded to landlord; Wardrobe Door Handle: $30.00 awarded to landlord

What type of tenancy dispute was case 4637094?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4637094?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9467065-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4637094?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4637094?

Property Damage: $500.00 awarded to tenant; Property Damage: $50.00 awarded to landlord; Property Damage: $1,492.00 awarded to landlord; Rent Arrears: $397.29 awarded to landlord; Wardrobe Door Handle: $30.00 awarded to landlord

What type of tenancy dispute was case 4637094?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4637094?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9467065-Tenancy_Tribunal_Order.pdf.

27 Paddington Grove, Karori, Wellington 6012 Tenancy Tribunal Case 4637094 — Property damage

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27 Paddington Grove, Karori, Wellington 6012 Tenancy Tribunal Case 4637094 — Property damage | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4637094 — net $1,469.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears at end of tenancy	$397.29		Rent arrears at end of tenancy
Wardrobe door handle	$30.00		Wardrobe door handle
Light fitting replacement	$50.00		Light fitting replacement
Fence repair cost	$1,492.00		Fence repair cost
Exemplary damages		$500.00	Exemplary damages
Total award	$1,969.29	$500.00
Net award	$1,469.29
Bond	$3,120.00
Total payable by Tenant to Landlord	$1,469.29

Claims and awards for application 4637094 — net $1,469.29 NZD. Verify on MoJ.

Rent arrears at end of tenancy

Amount: $397.29
Awarded to: Landlord
Reason: Rent arrears at end of tenancy

Wardrobe door handle

Amount: $30.00
Awarded to: Landlord
Reason: Wardrobe door handle

Light fitting replacement

Amount: $50.00
Awarded to: Landlord
Reason: Light fitting replacement

Fence repair cost

Amount: $1,492.00
Awarded to: Landlord
Reason: Fence repair cost

Exemplary damages

Amount: $500.00
Awarded to: Tenant
Reason: Exemplary damages

Claim types — money lines allowed on this order

Exemplary damages Property damage Rent arrears

Order

No suppression orders apply around publication of this decision.
Erica Joyce Cristal and James Thomas Coleman to pay Syed Aminullah $1,469.29 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $3,120.00 (3013094-005) immediately apportioned as follows: Syed Aminullah: $1,469.29 Erica Joyce Cristal and James Thomas Coleman: $1,650.71

Reasons

The Tribunal must consider an application filed by both the landlord and tenants, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
Both parties appeared at the hearing in Wellington on 27 September 2023.

BACKGROUND

As discussed below, the parties entered into three separate fixed term tenancies in relation to the premises.
Toward the end of the tenancy the relationship between the parties broke down. It is the case that the landlord was based in Australia, and would manage the tenancy from there.
The tenancy ended on 18 May 2023 at the end of the final fixed term period.
The premises were sold by the landlord subsequently.
Both parties have filed applications in the Tribunal.

RELEVANT LEGAL CONSIDERATIONS

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. The balance of probabilities in mathematical terms, means fractionally over 50% more likely than un-likely. The applicant for any claim must establish that what they are claiming is more likely than not. This 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.

LANDLORDS CLAIMS

The landlord has filed a wide range of claims against the tenants. I will address those in turn.

RENT ARREARS

The landlord has applied for an order that the tenant pay rent arrears. It is the case that the landlord was not certain of what the amount of the arrears he was claiming, but the Tribunal a range, but when pushed for a figure of the claim, the landlord stated that the claim was of $14,000.00.
In response the tenants dispute the amount of the rent that would be due over the course of the tenancy, and whether there should be a lawn mowing discount applied. The tenants say the fact of the arrears was only raised with them at the end of the tenancy
The landlord states that the tenants paid $40,783 in total in the first year, and in the second year $43,164, and in the third year $22,360, being a total of $106,307.00. The tenants agreed that those total payments were correct. Analysis
As I indicated to the parties at the hearing, with respect to this claim I have taken a strict approach to determining the rent arrears, based on what the three tenancy agreements on file record the rent would be. Rent arrears can simply be calculated by deducting the amount of rent that should have been paid over the course of the tenancy, from the rent that was paid.
As noted above, both parties agree that the rent that was paid totals $106,307.00.
In terms of the rent that would be due, the original tenancy agreement records that the rent was $780.00 for the fixed term period from 19 November 2020 until 18 November 202.
The parties then entered into another fixed term tenancy agreement from 19 November 2021 until 18 November 2022, for $830.00 per week (the second fixed term period).
The parties then entered into a final fixed term contract for rent of $880.00 between 19 November 2022 and 18 May 2023 (the third fixed term period).
Applying the above dates and amounts, the tenants should have paid $106,704.29 in rent over the course of the tenancy. Taking into consideration the amount of rent that was paid being $106,307.00, then the arrears for the premises are $397.29, and that amount is ordered to be paid by the tenants. I have calculated that amount on the following basis:

COMPENSATION

With any claim for compensation, 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 firstly prove the damage is more than fair wear and tear. If this is established, to avoid liability, the tenant must then 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 where 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. Pantry switch
The landlords position is that the switch on the pantry door has been broken. The landlord considers that the door has been forcefully closed. The landlord disputes that this would be fair wear and tear given the door is so solid.
The tenants say that the switch was working during the tenancy, and they dispute having forcefully closing the door, breaking the switch. Analysis
I accept that the switch was broken during the tenancy, but on balance I am not persuaded that the landlord has proven that the damage is beyond fair wear and tear. I have received no evidence from an electrician supporting this to be more than simply a maintenance issue. Ultimately it is the landlord who must prove that the damage is more than fair wear and tear, and Mr Aminullah has not established that, so the claim must be dismissed. Pantry door arm
The landlord states that the tenants damaged a door arm at the top of the pantry door. The landlord says this item was installed in 1974 when the premises were built. The landlord states that one part of the broken arm was missing at the end of the tenancy.
The tenants dispute that the door arm was broken as a consequence of their actions. Analysis
I accept that the door arm was broken during the tenancy, but I am not persuaded that this is not fair wear and tear, particularly given the age of the item. The landlord has not proven this claim, so it is dismissed. Door handle replacement
The landlord seeks costs of replacing a door handle to the sum of $30.00. The tenants agree they are liable for this cost, so it is ordered by consent. Entrance light fitting
The landlord has claimed $100.00 for the replacement of an entrance / hall light fitting which he reports was broken at the end of the tenancy. The landlord produced a photograph of the broken item. The landlord was not sure of the replacement cost, but seeks $100.00.
The tenants say all lights were working, and are not sure what this claim relates to. Analysis
I accept the landlords evidence that the fitting was broken when the tenancy was returned, and I doubt it would be classed as fair wear and tear given its location on the ceiling. The onus then moves to the tenants to prove the damage was not careless or intentional damage, and they have not established that.
In the absence of more specific evidence on costs for the replacement, I consider $100.00 to be too high. I order compensation for the fitting of $50.00, which I consider would be a fair award in the circumstances. Boundary fence repair
The landlord seeks compensation for two fences. The landlord says the fence on the eastern side has been damaged by golf balls and pallets from the tenant falling on the fence panel breaking it. The landlord states that the tenant had agreed he would fund the repairs. The landlord produced an invoice showing the repair cost was $1,492.00 for that fence.
In relation to the repair of the fence on the western side, the landlord states it was hit by a truck or similar, and seeks $3,453.99, again supported by an invoice.
In response the tenants dispute they had caused any damage to the fence on the western side, stating that it was broken by the wind. The tenants produced text messages from the neighbour ‘Carolyn’ which recorded there were issues with the fence from storms, and makes reference to the fence that the tenants had previously fixed. The tenants noted that it was a large section of fence that was damaged. The tenants also submit that the claim of $3,453.99 is inflated to replace two fibre cement panels, and the invoice from the tradesman only records it is “labour & materials”, therefore not specifying the work that was undertaken. The tenants noted that the photographs they have seen for the sale of the premises, show that the fences have been upgraded for the sale.
However the tenants accept that they have damaged the eastern fence from hitting it with golf balls and from pallets falling on the fence, but they consider the repair cost to replace the two sheets fibre cement of $1,492.00 is excessive, and that they could have had the work done cheaper.
The landlord’s position is that the text message from the neighbour was referring to a fence the tenants had already tried to fix. The landlord maintains that the fence had been damaged by a truck hitting it. The landlord states that because the tenants did not raise this damage when it occurred, the insurance company would not accept the claim when lodged by the landlord. The landlord considers that the cost for the repairs are what the tradesman charged, and disputes the claims are inflated.
The tenants dispute that they hit the fence with a truck as claimed. Analysis
The landlord’s position is that the tenants hit one fence with a truck, but there is no evidence of that.
The best evidence I have in relation to the fence on the western side is the text message conversation with the neighbour. In my view that does support a wind related event. The reference to being the fence the tenant had fixed, could be read as meaning fixed from the wind event.
In relation to the eastern wall, the tenants agree they are liable for this damage (and I agree that is the case, it is careless damage), but the dispute is over the cost for the repair, being $1,492.00. I have no reason to conclude that the invoice of $1,492.00 was not the actual cost to repair the eastern fence. I accept that is the cost incurred by the landlord to repair the fence, and this is ordered in full.
I note the tenants submission that they could have got the work done cheaper. That may be the case, but the time for the tenants to get the fence repaired on their terms, was prior to the tenancy ending. Once possession returned to the landlord, then the landlord was entitled to get the fence repaired by his chosen contractor. I could reduce the order if I considered it was not a market rate, but I am not persuaded there is evidence to show the charge was plainly unreasonable. Switch board repair.
The landlord has claimed costs for electrician work in relation to the external switch board. The landlord states that a storm water downpipe above the switch board had been broken by the tenants, which caused the water to flow onto the switch board causing damage to the internal electrical components, and rusting the box. The landlord produced evidence of the following costs: a. Invoice from RDT Electrical Limited for the replacement of two circuit breakers of $399.81. b. Charges of $250.00 for the replacement of the downpipe (arranged by the electrician). c. Invoice from RDT Electrical Limited for conduit and fittings, a circuit breaker and labour, totalling $770.66.
The landlord states the work for which the $770.66 charge was made, was because the tenants advised that one of the circuits in the house needed to be upgraded, which the landlord did (at $770.66), but it was later found that the problem was with the damage in the switch board.
In response the tenants dispute all claims. The tenants consider the problems with the premises are maintenance issues, so are the landlords responsibility. The tenants state that the door for the switchboard had blown off. The tenants say they did not know the downpipe was broken, the first they knew was when it was raised by the electrician. The tenants consider the premises were in need of widespread maintenance. Analysis
I find this claim has not been established for these reasons.
Firstly the landlord has not established that the tenants caused damage to downpipe. The photographs provided which show a downpipe, show what in my assessment appears to be a new downpipe, and I question whether that is the pipe the electrician had installed.
Secondly, but more importantly, I have not received any evidence from an electrician setting out how the damage to the switch board has occurred. Based on the photographs presented, I accept that the door to the switch board was broken, it seems that one of the two hinges had broken. But that is not to say the tenants caused that damage. But if the argument was that the tenants did not notify the landlord, causing continuing damage, there is no evidence before the Tribunal that any water ingress in fact caused the damage claimed.
This claim is dismissed. Other landlord claims
It is the case that the landlord had filed the application on the basis of widespread alleged damage being caused by the tenants. Early on in the hearing, I advised the landlord that claims for compensation needed to be in relation to actual losses incurred by the landlord, and if he had sold the premises without getting the work done, there would be no loss, therefore no order could be made to compensate the landlord. On that basis the landlord only advanced the claims he had incurred a financial loss for.
I note the decision from the District Court, of Yaowei (Kathleen) Yin v Sammy Jo Frances Waitai [2021] NZDC 23054, in which Judge Clark needed to consider an appeal from a Tenancy Tribunal decision. In that case Ms Yin was a landlord, and she like Mr Aminullah sold the house, and filed claims in the Tenancy Tribunal in relation to damage. The Court would not accept that the claim should be ordered against the tenant, stating: [19] Ms Yin says the amount of approximate $16,000 she is seeking is based on a quote for painting and wallpapering. The quote was not before me but, in any event, I asked Ms Yin whether this work was undertaken prior to her selling the property. She confirmed it had not. [20] I find then there is no evidence linking any damage caused by Ms Waitai’s son to the need to paint and wallpaper. Furthermore, as Ms Yin did not incur the cost to repair, I dismiss this claim accordingly.
Such is the case for Mr Aminullah, in the absence of him having undertaken the work and incurring a loss, there would be no basis to order compensation be paid by the tenant – whether those claims could be proven or not. TENANT’S CLAIMS
The tenants only claim is that the landlord did not appoint an agent, given he was living outside New Zealand. The tenant said that because the landlord was not living in New Zealand, that caused wide ranging problems at the end of the tenancy, which could have been avoided if someone was in New Zealand who could do tasks such as inspections and maintenance.
The landlord has not disputed that no agent was appointed after the landlords went to Australia, but that was because they found the tenants to be good people and they trusted them. The landlord advised he had no reason to be worried about the property, hence not appointing an agent. Analysis
Section 16A confirm that “a landlord who is out of New Zealand for longer than 21 consecutive days must ensure that the landlord has an agent in New Zealand”. This provision further requires that the landlord notify the tenants of the agent’s name, contract address and address for service. The landlord also need to notify the Chief Executive (the Bond Centre) of the agents details. This section confirms that failure to appoint an agent is deemed an unlawful act.
The landlord agrees that he did not appoint an agent when he moved out of New Zealand for more than 21 days. This is an unlawful act, so exemplary damages could be ordered.
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 (like not appointing an agent). 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, which for a breach of section 16A is $1,500.00.
Taking the above factors into account, I conclude: a. It is more likely than not that the landlords decisions around management of the tenancy were made intentionally. b. The effect of the unlawful act has meant that the premises have not had the oversight (such as inspections) or maintenance and management that a tenancy in New Zealand would normally have. That has resulted in wide ranging disputes at the end of the tenancy that could otherwise have been avoided if an agent was in place. c. There is a strong interest for the tenants to have had an agent available in New Zealand to oversee the tenancy, and in fact that is a strong interest for tenants, landlords and the public generally. d. I consider it would be just to make an order in this case.
The maximum level of exemplary damages is $1,500.00. In this case I consider an order at 1/3 rd of the maximum level would be appropriate. There are no aggravating factors present, nor factors that would argue for a lesser order.
I record for completeness that the landlord had argued that when he first went overseas it was around the time of the COVID 19 lockdowns. I accept that was the case, and if the breach was only during that period, I would have concluded it would not be just to order exemplary damage. But the problem for the landlord is that the COVID restrictions ended well before the tenancy ended, so the landlord should have appointed an agent when any relevant restrictions had loosened.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. The landlord has applied for name suppression, the tenants have not. In this case neither party has been wholly or substantially successful in the proceeding. Name suppression is declined.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4637094 — net $1,469.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears at end of tenancy	$397.29		Rent arrears at end of tenancy
Wardrobe door handle	$30.00		Wardrobe door handle
Light fitting replacement	$50.00		Light fitting replacement
Fence repair cost	$1,492.00		Fence repair cost
Exemplary damages		$500.00	Exemplary damages
Total award	$1,969.29	$500.00
Net award	$1,469.29
Bond	$3,120.00
Total payable by Tenant to Landlord	$1,469.29

Claims and awards for application 4637094 — net $1,469.29 NZD. Verify on MoJ.

Rent arrears at end of tenancy

Amount: $397.29
Awarded to: Landlord
Reason: Rent arrears at end of tenancy

Wardrobe door handle

Amount: $30.00
Awarded to: Landlord
Reason: Wardrobe door handle

Light fitting replacement

Amount: $50.00
Awarded to: Landlord
Reason: Light fitting replacement

Fence repair cost

Amount: $1,492.00
Awarded to: Landlord
Reason: Fence repair cost

Exemplary damages

Amount: $500.00
Awarded to: Tenant
Reason: Exemplary damages

Claim types — money lines allowed on this order

Exemplary damages Property damage Rent arrears

Order

No suppression orders apply around publication of this decision.
Erica Joyce Cristal and James Thomas Coleman to pay Syed Aminullah $1,469.29 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $3,120.00 (3013094-005) immediately apportioned as follows: Syed Aminullah: $1,469.29 Erica Joyce Cristal and James Thomas Coleman: $1,650.71

Reasons

The Tribunal must consider an application filed by both the landlord and tenants, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
Both parties appeared at the hearing in Wellington on 27 September 2023.

BACKGROUND

As discussed below, the parties entered into three separate fixed term tenancies in relation to the premises.
Toward the end of the tenancy the relationship between the parties broke down. It is the case that the landlord was based in Australia, and would manage the tenancy from there.
The tenancy ended on 18 May 2023 at the end of the final fixed term period.
The premises were sold by the landlord subsequently.
Both parties have filed applications in the Tribunal.

RELEVANT LEGAL CONSIDERATIONS

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. The balance of probabilities in mathematical terms, means fractionally over 50% more likely than un-likely. The applicant for any claim must establish that what they are claiming is more likely than not. This 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.

LANDLORDS CLAIMS

The landlord has filed a wide range of claims against the tenants. I will address those in turn.

RENT ARREARS

The landlord has applied for an order that the tenant pay rent arrears. It is the case that the landlord was not certain of what the amount of the arrears he was claiming, but the Tribunal a range, but when pushed for a figure of the claim, the landlord stated that the claim was of $14,000.00.
In response the tenants dispute the amount of the rent that would be due over the course of the tenancy, and whether there should be a lawn mowing discount applied. The tenants say the fact of the arrears was only raised with them at the end of the tenancy
The landlord states that the tenants paid $40,783 in total in the first year, and in the second year $43,164, and in the third year $22,360, being a total of $106,307.00. The tenants agreed that those total payments were correct. Analysis
As I indicated to the parties at the hearing, with respect to this claim I have taken a strict approach to determining the rent arrears, based on what the three tenancy agreements on file record the rent would be. Rent arrears can simply be calculated by deducting the amount of rent that should have been paid over the course of the tenancy, from the rent that was paid.
As noted above, both parties agree that the rent that was paid totals $106,307.00.
In terms of the rent that would be due, the original tenancy agreement records that the rent was $780.00 for the fixed term period from 19 November 2020 until 18 November 202.
The parties then entered into another fixed term tenancy agreement from 19 November 2021 until 18 November 2022, for $830.00 per week (the second fixed term period).
The parties then entered into a final fixed term contract for rent of $880.00 between 19 November 2022 and 18 May 2023 (the third fixed term period).
Applying the above dates and amounts, the tenants should have paid $106,704.29 in rent over the course of the tenancy. Taking into consideration the amount of rent that was paid being $106,307.00, then the arrears for the premises are $397.29, and that amount is ordered to be paid by the tenants. I have calculated that amount on the following basis:

COMPENSATION

With any claim for compensation, 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 firstly prove the damage is more than fair wear and tear. If this is established, to avoid liability, the tenant must then 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 where 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. Pantry switch
The landlords position is that the switch on the pantry door has been broken. The landlord considers that the door has been forcefully closed. The landlord disputes that this would be fair wear and tear given the door is so solid.
The tenants say that the switch was working during the tenancy, and they dispute having forcefully closing the door, breaking the switch. Analysis
I accept that the switch was broken during the tenancy, but on balance I am not persuaded that the landlord has proven that the damage is beyond fair wear and tear. I have received no evidence from an electrician supporting this to be more than simply a maintenance issue. Ultimately it is the landlord who must prove that the damage is more than fair wear and tear, and Mr Aminullah has not established that, so the claim must be dismissed. Pantry door arm
The landlord states that the tenants damaged a door arm at the top of the pantry door. The landlord says this item was installed in 1974 when the premises were built. The landlord states that one part of the broken arm was missing at the end of the tenancy.
The tenants dispute that the door arm was broken as a consequence of their actions. Analysis
I accept that the door arm was broken during the tenancy, but I am not persuaded that this is not fair wear and tear, particularly given the age of the item. The landlord has not proven this claim, so it is dismissed. Door handle replacement
The landlord seeks costs of replacing a door handle to the sum of $30.00. The tenants agree they are liable for this cost, so it is ordered by consent. Entrance light fitting
The landlord has claimed $100.00 for the replacement of an entrance / hall light fitting which he reports was broken at the end of the tenancy. The landlord produced a photograph of the broken item. The landlord was not sure of the replacement cost, but seeks $100.00.
The tenants say all lights were working, and are not sure what this claim relates to. Analysis
I accept the landlords evidence that the fitting was broken when the tenancy was returned, and I doubt it would be classed as fair wear and tear given its location on the ceiling. The onus then moves to the tenants to prove the damage was not careless or intentional damage, and they have not established that.
In the absence of more specific evidence on costs for the replacement, I consider $100.00 to be too high. I order compensation for the fitting of $50.00, which I consider would be a fair award in the circumstances. Boundary fence repair
The landlord seeks compensation for two fences. The landlord says the fence on the eastern side has been damaged by golf balls and pallets from the tenant falling on the fence panel breaking it. The landlord states that the tenant had agreed he would fund the repairs. The landlord produced an invoice showing the repair cost was $1,492.00 for that fence.
In relation to the repair of the fence on the western side, the landlord states it was hit by a truck or similar, and seeks $3,453.99, again supported by an invoice.
In response the tenants dispute they had caused any damage to the fence on the western side, stating that it was broken by the wind. The tenants produced text messages from the neighbour ‘Carolyn’ which recorded there were issues with the fence from storms, and makes reference to the fence that the tenants had previously fixed. The tenants noted that it was a large section of fence that was damaged. The tenants also submit that the claim of $3,453.99 is inflated to replace two fibre cement panels, and the invoice from the tradesman only records it is “labour & materials”, therefore not specifying the work that was undertaken. The tenants noted that the photographs they have seen for the sale of the premises, show that the fences have been upgraded for the sale.
However the tenants accept that they have damaged the eastern fence from hitting it with golf balls and from pallets falling on the fence, but they consider the repair cost to replace the two sheets fibre cement of $1,492.00 is excessive, and that they could have had the work done cheaper.
The landlord’s position is that the text message from the neighbour was referring to a fence the tenants had already tried to fix. The landlord maintains that the fence had been damaged by a truck hitting it. The landlord states that because the tenants did not raise this damage when it occurred, the insurance company would not accept the claim when lodged by the landlord. The landlord considers that the cost for the repairs are what the tradesman charged, and disputes the claims are inflated.
The tenants dispute that they hit the fence with a truck as claimed. Analysis
The landlord’s position is that the tenants hit one fence with a truck, but there is no evidence of that.
The best evidence I have in relation to the fence on the western side is the text message conversation with the neighbour. In my view that does support a wind related event. The reference to being the fence the tenant had fixed, could be read as meaning fixed from the wind event.
In relation to the eastern wall, the tenants agree they are liable for this damage (and I agree that is the case, it is careless damage), but the dispute is over the cost for the repair, being $1,492.00. I have no reason to conclude that the invoice of $1,492.00 was not the actual cost to repair the eastern fence. I accept that is the cost incurred by the landlord to repair the fence, and this is ordered in full.
I note the tenants submission that they could have got the work done cheaper. That may be the case, but the time for the tenants to get the fence repaired on their terms, was prior to the tenancy ending. Once possession returned to the landlord, then the landlord was entitled to get the fence repaired by his chosen contractor. I could reduce the order if I considered it was not a market rate, but I am not persuaded there is evidence to show the charge was plainly unreasonable. Switch board repair.
The landlord has claimed costs for electrician work in relation to the external switch board. The landlord states that a storm water downpipe above the switch board had been broken by the tenants, which caused the water to flow onto the switch board causing damage to the internal electrical components, and rusting the box. The landlord produced evidence of the following costs: a. Invoice from RDT Electrical Limited for the replacement of two circuit breakers of $399.81. b. Charges of $250.00 for the replacement of the downpipe (arranged by the electrician). c. Invoice from RDT Electrical Limited for conduit and fittings, a circuit breaker and labour, totalling $770.66.
The landlord states the work for which the $770.66 charge was made, was because the tenants advised that one of the circuits in the house needed to be upgraded, which the landlord did (at $770.66), but it was later found that the problem was with the damage in the switch board.
In response the tenants dispute all claims. The tenants consider the problems with the premises are maintenance issues, so are the landlords responsibility. The tenants state that the door for the switchboard had blown off. The tenants say they did not know the downpipe was broken, the first they knew was when it was raised by the electrician. The tenants consider the premises were in need of widespread maintenance. Analysis
I find this claim has not been established for these reasons.
Firstly the landlord has not established that the tenants caused damage to downpipe. The photographs provided which show a downpipe, show what in my assessment appears to be a new downpipe, and I question whether that is the pipe the electrician had installed.
Secondly, but more importantly, I have not received any evidence from an electrician setting out how the damage to the switch board has occurred. Based on the photographs presented, I accept that the door to the switch board was broken, it seems that one of the two hinges had broken. But that is not to say the tenants caused that damage. But if the argument was that the tenants did not notify the landlord, causing continuing damage, there is no evidence before the Tribunal that any water ingress in fact caused the damage claimed.
This claim is dismissed. Other landlord claims
It is the case that the landlord had filed the application on the basis of widespread alleged damage being caused by the tenants. Early on in the hearing, I advised the landlord that claims for compensation needed to be in relation to actual losses incurred by the landlord, and if he had sold the premises without getting the work done, there would be no loss, therefore no order could be made to compensate the landlord. On that basis the landlord only advanced the claims he had incurred a financial loss for.
I note the decision from the District Court, of Yaowei (Kathleen) Yin v Sammy Jo Frances Waitai [2021] NZDC 23054, in which Judge Clark needed to consider an appeal from a Tenancy Tribunal decision. In that case Ms Yin was a landlord, and she like Mr Aminullah sold the house, and filed claims in the Tenancy Tribunal in relation to damage. The Court would not accept that the claim should be ordered against the tenant, stating: [19] Ms Yin says the amount of approximate $16,000 she is seeking is based on a quote for painting and wallpapering. The quote was not before me but, in any event, I asked Ms Yin whether this work was undertaken prior to her selling the property. She confirmed it had not. [20] I find then there is no evidence linking any damage caused by Ms Waitai’s son to the need to paint and wallpaper. Furthermore, as Ms Yin did not incur the cost to repair, I dismiss this claim accordingly.
Such is the case for Mr Aminullah, in the absence of him having undertaken the work and incurring a loss, there would be no basis to order compensation be paid by the tenant – whether those claims could be proven or not. TENANT’S CLAIMS
The tenants only claim is that the landlord did not appoint an agent, given he was living outside New Zealand. The tenant said that because the landlord was not living in New Zealand, that caused wide ranging problems at the end of the tenancy, which could have been avoided if someone was in New Zealand who could do tasks such as inspections and maintenance.
The landlord has not disputed that no agent was appointed after the landlords went to Australia, but that was because they found the tenants to be good people and they trusted them. The landlord advised he had no reason to be worried about the property, hence not appointing an agent. Analysis
Section 16A confirm that “a landlord who is out of New Zealand for longer than 21 consecutive days must ensure that the landlord has an agent in New Zealand”. This provision further requires that the landlord notify the tenants of the agent’s name, contract address and address for service. The landlord also need to notify the Chief Executive (the Bond Centre) of the agents details. This section confirms that failure to appoint an agent is deemed an unlawful act.
The landlord agrees that he did not appoint an agent when he moved out of New Zealand for more than 21 days. This is an unlawful act, so exemplary damages could be ordered.
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 (like not appointing an agent). 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, which for a breach of section 16A is $1,500.00.
Taking the above factors into account, I conclude: a. It is more likely than not that the landlords decisions around management of the tenancy were made intentionally. b. The effect of the unlawful act has meant that the premises have not had the oversight (such as inspections) or maintenance and management that a tenancy in New Zealand would normally have. That has resulted in wide ranging disputes at the end of the tenancy that could otherwise have been avoided if an agent was in place. c. There is a strong interest for the tenants to have had an agent available in New Zealand to oversee the tenancy, and in fact that is a strong interest for tenants, landlords and the public generally. d. I consider it would be just to make an order in this case.
The maximum level of exemplary damages is $1,500.00. In this case I consider an order at 1/3 rd of the maximum level would be appropriate. There are no aggravating factors present, nor factors that would argue for a lesser order.
I record for completeness that the landlord had argued that when he first went overseas it was around the time of the COVID 19 lockdowns. I accept that was the case, and if the breach was only during that period, I would have concluded it would not be just to order exemplary damage. But the problem for the landlord is that the COVID restrictions ended well before the tenancy ended, so the landlord should have appointed an agent when any relevant restrictions had loosened.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. The landlord has applied for name suppression, the tenants have not. In this case neither party has been wholly or substantially successful in the proceeding. Name suppression is declined.

Tenancy Tribunal case 4637094 — Property damage at 27 Paddington Grove, Karori, Wellington 6012

At a glance

Tenancy Tribunal case 4637094 — Property damage at 27 Paddington Grove, Karori, Wellington 6012

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

RENT ARREARS

COMPENSATION

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

RENT ARREARS

COMPENSATION

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions