What was the outcome of Tenancy Tribunal case 4675029?

The tribunal order states: Golden Spring Group Limited must pay Earle Wilkes and Melissa Wilkes

How much money was awarded in case 4675029?

Property Damage: $765.00 awarded to tenant; Rubbish Removal: $250.00 awarded to landlord

What type of tenancy dispute was case 4675029?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4675029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10303033-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4675029?

The tribunal order states: Golden Spring Group Limited must pay Earle Wilkes and Melissa Wilkes

How much money was awarded in case 4675029?

Property Damage: $765.00 awarded to tenant; Rubbish Removal: $250.00 awarded to landlord

What type of tenancy dispute was case 4675029?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4675029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10303033-Tribunal_Order.pdf.

55 Kensington Terrace, Gulf Harbour, Whangaparaoa 0930 Tenancy Tribunal Case 4675029 — Property damage

Claims and awards in Tenancy Tribunal application 4675029 — net $515.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rubbish removal	$250.00		Rubbish removal
General damages for privacy breach		$765.00	General damages for privacy breach
Total award	$250.00	$765.00
Net award		$515.00
Total payable by Landlord to Tenant		$515.00

Claims and awards in Tenancy Tribunal application 4675029 — net $515.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rubbish removal	$250.00		Rubbish removal
General damages for privacy breach		$765.00	General damages for privacy breach
Total award	$250.00	$765.00
Net award		$515.00
Total payable by Landlord to Tenant		$515.00

Order

Golden Spring Group Limited must pay Earle Wilkes and Melissa Wilkes $515.00 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,760.00 (6251429-009) to Earle Wilkes and Melissa Wilkes immediately.
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by both the landlord and tenant. DescriptionLandlordTenant Rubbish removal$250.00 General damages for privacy breach $765.00 Total award$250.00$765.00 Net award $515.00 Total payable by Landlord to Tenant $515.00
Both parties appeared at the hearing today in the North Shore District Courthouse.
The tenancy commenced on 9 February 2019, ending on 5 August 2023. The parties could not agree on various matters, and I will set out the relevant background to those matters below as a traverse the parties claims.

Who is the landlord?

There was an issue arise during the hearing, that was the question of who was the correct landlord for this order.
The tenancy commenced on 9 February 2019 as a fixed-term tenancy. The tenancy agreement records that Mission Property Management Limited (Mission) was the agent of the landlord, but otherwise, the landlord was not identified on the tenancy agreement. However the insulation statement suggests that Mission was the landlord. That is as follows: .....
In my assessment, this document was signed by Mr Wang on behalf of Mission Property Management Limited, supporting a conclusion that the contract was with Mission, therefore Mission was the landlord.
Furthermore the bond lodgement form records the landlord as Mission Property Management Limited.
The tenancy was a fixed term tenancy. On 7 January 2020 the tenancy term was extended. In the renal confirmation, the landlord records “Thank your renewing your tenancy with Mission Property Management Limited”.
Again the above points to Mission as being the landlord.
On 16 May 2020 Ms Huo emailed the tenants confirming that Golden Spring Group Limited was not taking over as ‘property manager’, and the transfer of the tenancy to Golden Spring Group is not disputed.
For completeness I have seen no evidence that the tenancy has been transferred from Mission to any other person / company than Golden Spring Group Limited. I find therefore that Golden Spring Group Limited is the landlord, having taken over the tenancy from Mission.
However if this matter was viewed from the perspective of agency law, I would also find that Golden Spring would still be the relevant applicant/respondent in this case.
I note the Privy Council decision of Basma v Weekes [1950] AC 441 is authority that: ... an agent who contracted in his own name did not cease to be contractually bound because it was proved that the other party knew when the contract was made that he was acting as an agent; that the agreement which was made in his name did not cease in that event to contain the names of the contracting parties..., as the agent could have sued on the contract, so could his principal...
So even if it could be proven that the tenants knew that Mission and or Golden Spring was only an agent (and I don’t consider that has been proven), then the tenants could have brought a claim against Mission, or Golden Spring, because those are the names recorded as the other contracting party – the landlord.
I also note that New Zealand case of Mumby v Gary Brown Realty Limited [2011] DCR 420. This was a tenancy dispute. The original tenancy agreement was in the name of “the Professionals”, and then later Gary Brown Realty took over the tenancy. Communications also recorded that Gary Brown Realty was working as agent for the landlord. At the Tenancy Tribunal, the Tribunal ordered that only the owner (landlord) pay the sum ordered, but the tenants appealed that to the District Court, on the basis that they considered the order should have been that Gary Brown Realty pay that money. The District Court agreed, stating: [49]Gary Brown Realty taking over the role as agent for the owners in 2009 at the time of the letter to the tenant and also the residential tenancy agreement inserted the agent’s name in the landlord’s details. The bond lodged lists the agent as the landlord and the notice to the tenant to vacate the property was issued by the agent. [50] Accordingly, the agent is liable on the contract. The landlord is another additional party who can sue or be sued on the contract.” [51] As between the agent and the landlord, the rights of the landlord prevail as the agent, Gary Brown Realty Ltd, is the landlord’s agent. As between tenant and the agent, however, the tenant can sue the agent and the landlord although, of course, cannot recover against both. [52] The tenant is entitled to sue the person who made the contract and the agent cannot escape by saying that, in fact, he was really acting on behalf of someone else. The only avoidance of liability would be to show on the contract (and in the supporting documentation) that he is only an intermediary, for example by signing “as agent for” or “on behalf of”. [53] Regardless of the fact that the tenant was aware that Gary Brown Realty Ltd was an agent, the agent is still liable in respect to the tenancy. Had the tenant brought proceedings solely against the landlord then the agent would not have had any liability.”
That is similar to the case before me. I find that the Wilkes’ could have sued either the owner as landlord (if they wished to do so and knew who that was), or the agent as landlord (Golden Spring Group Limited.)
I note for completeness that the claim against the tenants was filed by Golden Spring Group Limited as the landlord not as the agent. Golden Spring cannot have it both ways, they cannot be the landlord for the purpose of brining a claim against the tenant, but then not the landlord for the purpose of defending a claim.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant 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.

TENANTS CLAIMS

Costs

The tenant seeks an order that the landlord pay costs. The tenant states that he needed to take time off work to attend a final checkout of the tenancy, but ultimately no actual joint assessment was undertaken. The tenant also states that the bond has been held in the Bond Centre given the dispute, and the tenants were intending on using that money for the purchase of their new house.
In response, the landlord states that there was an agreement for a check- out inspection, but when the landlord attended, the tenant was not there. The landlord considers there may have been a misunderstanding over the dates. The landlord further submitted that there is no need for the tenant to be present at the final inspection. The landlord states that the issue with the bond being in the Bond Centre is not money held by the landlord, and there were delays in getting to this hearing.
The tenant concluded by stating that the landlord could have flagged any concerns during the tenancy and they could have addressed those earlier, so the delay in release of the bond is avoidable. Analysis
There is no expectation in the RTA that tenants and landlords undertake a joint exit inspection on the premises when a tenancy ends. Certainly it is good practice so that there can be discussion around any concerns, but it is not strictly required. While I can understand an inconvenience has arisen for the tenant, I cannot see any legal basis upon which I could order that costs be paid for any missed inspection.
In relation to the bond, I cannot order costs or interest in relation to that. The system we have is that a bond is paid as a security for any damage or rent arrears at the end of the tenancy. In most cases tenants and landlords agree on the release of both to either party, but when the parties cannot agree then either the landlord or tenant needs to apply to the Tenancy Tribunal to decide what should happen to the bond. That is what has happened here. It is implicit that when there is a dispute, the bond remains in the Bond Centre until the Tribunal decision is issued (today). The RTA does not have any provision requiring interest to be paid on bonds held by the Bond Centre.
I record for completeness, that I do not consider this to be a case of a landlord unreasonably refusing to agree to a bond release to inconvenience the tenant. As can be seen in this decision the landlord has had some measure of success, supporting that the decision not to release the bond to the tenant at the end of the tenancy was a reasonable one.
There again is no legal basis for finding the landlord liable to pay costs or interest concerning that bond. Breach of Privacy
The tenant states that a friend had noticed that the landlord had posted photographs of the tenancy on the website marketing the tenancy for rent. Mr Wilkes states that the landlord had not obtained permission to use those photographs, and if they had been asked, they would not have given it. The photographs uploaded included photographs they had in the home of their children and other close family members as well as their belongings.
Ms Huo states that it was not them who posted those photographs, that it was another person appointed by the owner. But Ms Huo agreed that her company was the landlord until the end of the tenancy. Analysis
The RTA confirms that the tenant is entitled to privacy in the tenancy. Section 38(2) requires: (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
In this case, the evidence is that during the tenancy when Golden Spring was the landlord, photographs were taken of the tenancy premises without the knowledge of the tenants, and then later posted on a public website in order to re-rent the premises. The photographs are of the inside of the dwelling, and show a range of personal items for the tenants, and would be an egregious breach of the tenant’s privacy expectation.
Ultimately it is the landlord who needed to ensure that the privacy of the tenants was not breached, and I do not consider the landlord has achieved that in this case, whether the photographs were taken by themselves or the principal or some other person acting with authority of the landlord.
I accept this has caused some measure of mental distress for the tenants, to the extent that it is reasonable that general damages be ordered. In the circumstances I consider an order of general damages to the level of one week of rent would be reasonable. I therefore order the landlord to pay general damages for the privacy breach to the sum of $765.00

LANDLORDS CLAIM

Cleaning

The landlord has claimed $690.00 for cleaning the premises, which the landlord says was not reasonably clean at the end of the tenancy.
In response the tenant states that at the start of the tenancy, they raised with the landlord at the time (Mission) that they were not happy with the state of the premise, but they responded that the state of the premises was ‘fair wear and tear’, and that when they left they would recognise it then. Reference was made to mould on the garage door which was present at the start of the tenancy. The tenant states that during the course of the tenancy the landlord undertook inspections of the premises and no issue were raised. Furthermore, the tenant considers that the cleaning claim is excessive. Mr Wilkes advised that they treated the premises as if it was their own property.
Ms Huo states that they had compared the premises in the moving in photographs. Analysis
The RTA requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (s45(1)(a)), and there is an equivalent obligation on the tenant to return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
It is important to note that the RTA does not require the premises to be provided/returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
In my assessment, the premises were for the most part reasonably clean. While there was mould and dirt on the inside of the garage door and walls, I must take into consideration this was a garage. Otherwise I am not persuaded that interior cleaning was reasonably necessary to address a tenant breach.
However, I consider there was a range of rubbish shown in the photographs that would be the tenant’s responsibility to have removed. I consider it fair that the tenants pay a portion of the cleaning account for that rubbish. Based on what I have seen on the photographs I consider an order of $250.00 toward the removal and disposal of the rubbish left on the premises would be fair. Cat door
The landlord has claimed compensation for the cat door, but was not sure what had happened to it, but it was replaced. I raised with the landlord that the obligation is on the landlord to prove the cat door did not need replacement from fair wear and tear. The landlord advised the tenants had a responsibility to look after the property, and it should have been returned how they got it.
Mr Wilkes states that they did not have a cat, but when they moved in there was a neighbouring cat who would come in, so they taped the cat flap to stop the cat from coming in. The tenant states that the catflap was basic and ‘tired’. Analysis
Where a landlord claims compensation for damage caused by a tenant, the landlord must first prove the damage 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.
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.
In relation to the cat door, the landlord has not established that the cat door needed replacement from anything other than fair wear and tear. It is not clear what has actually happened with the cat door, but as I noted today, cat doors like many things in a house do not last forever. I find this claim has not been established by the landlord, so it is dismissed. Painting
The landlord states that during the course of the tenancy the tenants had affixed mirrors and other wall decorations to the walls. That included wall hooks that have affected the paint, and there are nails ‘everywhere’. The landlord also says there was a plaster patch.
The tenant agrees that they did put removable hooks on the wall, that would be removable from the painted surface. The ‘nails’ were ‘paper pins’. The tenant agreed that some more permanent fixings were used for the heavy items like mirrors. The tenant agrees that he did try to fix some holes, but states that he did not get the colour matching right. The tenant states there was no refurbishment, and believes it was in the original state from when it was built. The tenant considers that the landlord is seeking to have them pay for a refurbishment of the tenancy.
I asked the landlord when the premises were last painted, and she advised she does not know, but states that the owner advised it was ‘new’ paint at the start of the tenancy. But ultimately the landlord states she cannot be sure when it was last repainted. Analysis
I have considered the photographs presented, I accept there have been additional adhesive hooks on the walls, and other damage to the surface. But I am also minded that this was a tenancy of around 4 ½ years duration, and it can be accepted that a tenant living in the dwelling will cause minor damage to walls as a result of normal living in the premises. The tenants should make the premises their home, and doing things like affixing pictures to walls is a normal thing people do in their homes.
I am also minded that painting the walls of a tenancy internally is normally undertaken as a maintenance issue perhaps every 8 – 10 years in a rental property. The landlord was not able to confirm when the walls in this tenancy were last painted to convince me that the tenant should now pay to have the dwelling repainted from premature aging.
The landlord has not convinced me that the damage caused by these tenants is beyond fair wear and tear and a maintenance issue. Therefore this claim is dismissed.

FILING FEE

Because both parties have had limited success in their respective claims, the filing fee is to be covered by each party.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case, the tenant has applied for name suppression. The tenants have not been wholly successful in the proceeding, but I cannot also say that the tenants have been substantially successful. I therefore decline to order name suppression.

Tenancy Tribunal case 4675029 — Property damage at 55 Kensington Terrace, Gulf Harbour, Whangaparaoa 0930

At a glance

Tenancy Tribunal case 4675029 — Property damage at 55 Kensington Terrace, Gulf Harbour, Whangaparaoa 0930

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Who is the landlord?

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

LANDLORDS CLAIM

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Who is the landlord?

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

LANDLORDS CLAIM

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions