What was Tenancy Tribunal case 4663629 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 4663629?

Cleaning: $100.00 awarded to landlord; Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 4663629?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4663629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9445521-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4663629 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 4663629?

Cleaning: $100.00 awarded to landlord; Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 4663629?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4663629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9445521-Tribunal_Order_Redacted.pdf.

65 Benmore Avenue, Cloverlea, Palmerston North 4412 Tenancy Tribunal Case 4663629 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4663629 — net $150.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Cleaning	$100.00		Cleaning
Exemplary damages		$250.00	Exemplary damages
Total award	$100.00	$250.00
Net award		$150.00
Bond		$1,400.00
Total payable by Landlord to Tenant		$150.00

Claims and awards in Tenancy Tribunal application 4663629 — net $150.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Cleaning	$100.00		Cleaning
Exemplary damages		$250.00	Exemplary damages
Total award	$100.00	$250.00
Net award		$150.00
Bond		$1,400.00
Total payable by Landlord to Tenant		$150.00

Order

The Tribunal orders suppression of the parties’ names and identifying details.
The Bond Centre is to pay the bond of $1,400.00 ([Bond number suppressed]) to [The tenant/s] immediately.
[The landlord/s] must pay [The tenant/s] $150.00 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing. Standard of proof and evidence
In considering the claims, the “standard of proof” is “on the balance of probabilities.” In other words, the parties must establish with evidence that their claim is “more likely than not.” I consider each of the claims bearing in mind the standard of proof required.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented, including oral testimony. I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all the evidence.
Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
By accepting the evidence of one person over that of another person, I am not saying that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02: “... [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.” Tenant’s claims
The tenant has applied for compensation, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
The tenant has also applied for exemplary damages for the landlord failing to lodge the bond with the Bond Centre. Tenant’s claims for compensation
In October 2022, the tenant obtained the landlord’s permission to remove a thorny climber and some other vegetation from the property. The landlord agreed and assisted for part of the time. The tenant’s claim is for five hours labour, the hire of a chainsaw and half the cost of a skip bin. No evidence of the tenant seeking payment from the landlord during the tenancy was produced, nor of the landlord agreeing to compensate for the tenant for the work.
The tenant has not established that the landlord was under any obligation to remove the vegetation from the property. It was work undertaken to satisfy the tenant. Nor has the tenant persuaded the Tribunal that the landlord agreed to any reimbursement.
The tenant’s claim is dismissed.
The tenant advised that he removed a skip bin full of rubbish from the property at the end of December 2022. He explained that this was rubbish that had accumulated during the six and a half years he had been tenanting the property. He explained that it was the rubbish of other tenants who had lived there with him.
The landlord is not under any legal obligation to remove any tenant’s rubbish or discarded possessions. The tenant has ended up doing it on behalf of the tenants who had left the tenancy. As a tenant he is jointly and severally liable with the various tenants who have been a party to the tenancies over the six and a half years. This means that he is liable to the landlord for the removal of this rubbish.
The tenant’s claim for removal of this rubbish is dismissed. Tenant’s claim for exemplary damages
The tenant claims the landlord did not lodge the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord acknowledged that he did not lodge the bond until towards the end of the tenancy. He advised that he did not know that he needed to do so but did so as soon as he was made aware of the obligation.
The landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
In the District Court decision of TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 the Judge noted: “Like all citizens a landlord is deemed to know the law. Parliament’s intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter. See Attorney- General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In determining the appropriate level of exemplary damages, I have considered the following factors: a. The bond was not paid to the Bond Centre for almost the entire period of the tenancy and was held by the landlord. b. The tenant’s money was therefore at risk throughout the tenancy. c. The tenant has not suffered loss. d. The landlord paid the bond to the Bond Centre as soon as he became aware of his obligation to do so. e. This is the landlord’s first offence. f. It is important that other landlords be deterred from ignoring or remaining ignorant of their legal obligations under the RTA.
It is appropriate that the tenant be awarded a sum of $250.00 in exemplary damages for the landlord’s unlawful act. Landlord’s claims for compensation
The landlord has applied for compensation following the end of the tenancy as follows: a. Repairs to a hallway cupboard. b. Replacement of a lounge gas heater. c. Replacement of a bedroom panel heater. d. Carpet cleaning and stain removal. e. Cleaning of the property.
The tenant notified the landlord by text that the gib ceiling to the hallway linen cupboard had collapsed on 22 January 2023. He advised the landlord that he would try to repair it.
The landlord had a cursory look at the cupboard shortly after the tenant had repaired it. He made no objection to the repair. After the end of the tenancy, the landlord determined that the tenant’s repairs were unsatisfactory and undertook his own professional repairs.
The tenant denied doing anything that would cause the roof to collapse. The landlord was unable to provide any evidence as to what caused its collapse.
The landlord allowed the tenant to undertake repairs and did not arrange to have them undertaken by a suitably qualified tradesperson. The landlord’s claim is dismissed.
The landlord advised that in the property at the start of the tenancy were the original lounge gas heater and an original panel heater in a bedroom. The gas heater was not connected and so was not operating. The landlord produced evidence of similar items and their cost if they were to be replaced. The landlord has not replaced them.
The tenant accepted that they were present at the start of the tenancy and that he disposed of them when he was having a tidy up. The tenant therefore accepted liability for their loss.
The landlord advised that these items were original to the property when it was built in the mid-1990s. They were therefore nearly 30 years old. According to the Inland Revenue Department’s depreciation guidelines, they had no residual value.
The landlord has not persuaded me of the value of the loss he has suffered. Any loss he has suffered is minimal and an award of a token sum is not appropriate. The landlord’s claim is dismissed.
The landlord provided photographic evidence of some small stains in the carpet in the lounge. He advised that the carpet was new just after the start of the tenancy.
The tenant accepted that some of the stains may have been caused during the tenancy but claimed that they were fair wear and tear.
A tenant is not liable for fair wear and tear, meaning damage during ordinary use. The case of Nixon v Geal-Otter DC North Shore TT216/94 (as cited in “Residential Tenancy Law in New Zealand by Stewart Benson p 122) provides a useful summary of the law: “Mere use of the premises will by the law of inevitability produce a deterioration in condition.... [W]here a landlord proves the existence of damage, the landlord should also assume a burden of proof to exclude fair wear and tear. If a tenant raises a plausible explanation that points to fair wear and tear as an explanation, the landlord will fail in the claim.”
The landlord has not persuaded me on the balance of probabilities that the damage was not the result of fair wear and tear. The landlord’s claim is dismissed.
The landlord claimed that the property was not left by the tenant in a reasonably clean and tidy condition as required by section 40(1)(e) RTA.
There is no definition of “reasonably clean and tidy" in the RTA. This can make it difficult when people have different understandings of what it means. Tribunal and District Court decisions over the years have said that it means: a. To the standard an average reasonable bystander would consider reasonable. b. Not commercially clean, spotless, or to hotel standard. c. The standard will vary according to the age and condition of the premises so the better and newer the premises, the higher the standard. d. A tenant should not be expected to keep the premises any cleaner and tidier than they were at the start of the tenancy. e. Not necessarily to the standard where the landlord would be happy to rent it out to a new tenant. f. There is no requirement that each and every individual item in the premises be left “reasonably” clean and tidy, only an overall obligation in relation to the tenancy premises.
A landlord may often decide to clean premises to a higher standard than that required from the outgoing tenant before re-tenanting or selling, for example: rigorously cleaning all walls, ceilings, lightshades, skirtings, window and door sills, plugs and drains, silicone edging, behind fittings and appliances, and the outside of windows and of the house.
However, a landlord is only required to provide tenancy premises in a “reasonable state of cleanliness” (see section 45(1)(a) RTA) so the next tenant cannot insist that premises are presented to a higher standard. If a landlord chooses to do so, perhaps to attract tenants, then that is a business decision that they are entitled to make at their cost.
The tenant accepted that he did not clean the rangehood but advised that he cleaned the stove to the best of his ability and had cleaned the shower, the kitchen cupboards and the windows. The landlord provided photographic evidence in support of his claim for the cleaning of cupboards and the windows but had no supporting evidence showing the condition of the stove and oven, the shower or skirting boards.
The tenant is not under an obligation to clean the windows inside and out unless he has caused them to become dirty or they are particularly filthy. The landlord’s photographs do not support the contention that they were so dirty that the tenant had to clean them.
The landlord’s evidence does show that the tenant had not cleaned out or wiped down some of the kitchen cupboards so that they could be called reasonably clean. The tenant accepted that the rangehood had not been cleaned and did not object to the landlord’s description of the oven and stove. It is appropriate that the tenant contribute a modest amount to compensate the landlord for this cleaning.
The landlord has claimed for his time at $65.00 per hour. This is the rate he charges as a qualified tradesperson. It is not an appropriate rate for cleaning. From invoices seen in this Tribunal, a more acceptable rate is $25.00 to $30.00 per hour.
It is appropriate to award a sum that represents between three and four hours of work at that lower rate.
As both parties have had success in their applications, it is appropriate that they each bear the cost of their filing fees.
Similarly, it is appropriate that the parties’ names and details be suppressed.

Tenancy Tribunal case 4663629 — Exemplary damages at 65 Benmore Avenue, Cloverlea, Palmerston North 4412

At a glance

Tenancy Tribunal case 4663629 — Exemplary damages at 65 Benmore Avenue, Cloverlea, Palmerston North 4412

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions