What was Tenancy Tribunal case 4655483 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4655483?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4655483?

The primary dispute was Leaks. Related themes: Property damage.

Where can I read the official tribunal order for case 4655483?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9433190-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4655483 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4655483?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4655483?

The primary dispute was Leaks. Related themes: Property damage.

Where can I read the official tribunal order for case 4655483?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9433190-Tribunal_Order_Redacted.pdf.

28 Bassett Road, Johnsonville, Wellington 6037 Tenancy Tribunal Case 4655483 — Leaks

Order

The application is dismissed.
The Tribunal orders suppression of the Tenant name and identifying details.

Reasons

Both parties attended the hearing. Ms Staunton represented RentCare.
RentCare are seeking compensation for repairs due to a leak in the laundry. They say the leak was caused by [The tenant/s] washing machine pipe splitting and gradually leaking; therefore she should be liable. They have provided two invoices, as follows: a. 19 May: repaired leak in laundry – ongoing job: $184. This was for the plumber replacing the leaking pipe. b. 20 July: insurance excess – damage from not having the washing machine installed correctly: $2,750. This is the insurance excess charged to the owner for having to repair the damage to the house from the leak.
The evidence Ms Staunton relies on is a text from their plumber which says, “washing machine hose had a split in it, causing extensive water damage’. The photos provided show the plumber holding a clear thin pipe, but the split cannot be seen in the photos. The damage was to the floor and wall behind the laundry sink.
[The tenant/s] does not feel she should have to pay. She says her washing machine was brand new when she moved in in September 2022, so it is unlikely the pipe split. She also does not think it can be her machine’s pipes as the work has been done and she is still using her washing machine with her pipes connected.
[The tenant/s] says that when she moved in, the fittings for the washing machine were unusual, so she asked for help from RentCare. She says they just asked her lots of questions about the issue and did not provide any help. Therefore, she had a family member who is a plumber to install it for and has not had any problems.
There is evidence of emails from [The tenant/s] to RentCare asking for someone to check the pipes as they hadn’t been able to use the washing machine. She explains in her emails that the pipes are not “tight enough apparently and will flood” if she uses it. She further goes on to say, “the house wasn’t inspected properly upon moving in also so im not sure if last tenant had damaged the pipes that connect to the washing machine when they moved out.”
[The tenant/s] says the pipe shown in the pictures is not the one her machine came with which was only two grey pipes (which are still installed). She also says there was no proper inspection when she moved in as the previous tenant moved out the same day so she cannot be sure the leak was not already present when she moved in. The inspection photos Ms Staunton had access to do not show the relevant area.
As to when it occurred, [The tenant/s] says she didn’t notice any issue until she saw the water outside the house at some time in March. There was an inspection in February which did not note any concerns. The plumber detected the leak in April after noticing water outside when he was dealing with a different issue.

Is the tenant responsible for the damage to the premises?

In order to receive compensation, 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 Residential Tenancies Act 1986 (RTA).
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.
When damage is alleged, the rules relating to the burden of proof are slightly different from the usual situation of the applicant carrying the burden. With damage, it is for the landlord to prove that any damage is not fair wear and tear and that it occurred during the tenancy. However, the onus then shifts to the tenant to prove that the damage was not intentionally done or was not caused by a careless act or omission 1 . The RTA only provides for tenant liability where their acts or omissions were careless or intentional.
Given the water flowing onto the path outside the house only occurred at some point between February and April, I am satisfied that the leak commenced, and the damage occurred during the tenancy. Although the ingoing inspection was not sufficiently thorough, given the amount of water on the pathway, I am satisfied that it would have been noticed earlier if the leak had started earlier.
In any matter before it the Tribunal cannot rely on speculation or assumptions, it must rely on objective, substantiated evidence. After giving this matter careful consideration, I find that the evidence falls short of proving that the leak arose from [The tenant/s] washing machine pipes. All I have been provided is a short text from the plumber which does not give adequate description. Ms Staunton was not aware of exactly what the photos were depicting. There is no evidence as to what actual repair work was undertaken.
Further, [The tenant/s] evidence was that her machine came with two grey pipes which are not the subject of the leak. The landlord’s evidence has not 1 See sections 40(2)(a), 41 and 49B Residential Tenancies Act 1986 demonstrated what the clear pipe was for or what it was attached to, or that it was from [The tenant/s] machine.
Ultimately the issue boils down to the fact that an applicant must provide sufficiently robust evidence to establish the claims they are making to the required standard. RentCare have failed to do this.
In further clarification, the decision of Judge Mather in the District Court 2 is relevant, as follows: “...Ms Kaipo needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
Even if I am wrong in this finding and it was [The tenant/s] washing machine pipe that was leaking, I also do not find it established that the leak occurred as a result of any careless act or omission by [The tenant/s] as I can find no error in her actions. She had purchased a new washing machine. She reached out for help from the landlord to install it which was not provided. When it was not, she arranged her own plumber to install it for her. She did not notice the leak and nor could she have been expected to.
This was an inherent leak not caused by creation or exacerbation of any act of [The tenant/s]. Accordingly, there is no evidence of any careless or intentional act on [The tenant/s] part that would have established her liability pursuant to the RTA.
I further note that even if the evidence and facts had fallen a different way and I had considered [The tenant/s] liable, she cannot be liable for an insurance excess she had not been advised of. There were three different amounts noted as referring to the insurance excess in this matter: a. The tenancy agreement states that the insurance excess is $750. b. The letter from McLarens loss adjustor says that the excess was $2,750. c. An email from the agent to the tenant says the excess was $2,500.
Section 13A(2)(b)(i) of the RTA requires landlords to state their insurance excess on the tenancy agreement, which here was noted as $750. Section 13A(4) requires the landlord to tell the tenant if that changes; there is no evidence that they did that. There is no evidence here of several excesses being applied for any reason. Accordingly, the amount of $2,750 as an insurance excess is unsubstantiated and claimed in contravention of the RTA. 2 Kaipo v Clarke & McCarthy (DC) TT233/02
Given my findings, this claim is dismissed.
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. This includes being successful in their application or in their defence to an application. RentCare were not successful in their application, but [The tenant/s] was in her defence. Accordingly, I direct that [The tenant/s] details are redacted from the published order.

Tenancy Tribunal case 4655483 — Leaks at 28 Bassett Road, Johnsonville, Wellington 6037

At a glance

Tenancy Tribunal case 4655483 — Leaks at 28 Bassett Road, Johnsonville, Wellington 6037

At a glance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions