Published tribunal order
Tenancy Tribunal case 4680309 — Rent arrears at Unit/Flat 4, 155 Gillies Avenue, Epsom, Auckland 1023
Decided 22 Dec 2023 · Published 22 Dec 2023 · Application 4680309
- Rent arrears
Party names are redacted in the official published order.
Order
- Rusheng Huang must pay Ying Liu and Lei Chen $2,960.44 immediately, as set out in the table below. DescriptionLandlord Rent arrears to 30 October 2023$5,880.00 Filing fee reimbursement$20.44 Total award$5,900.44 Bond-$2,940.00 Total payable by Tenant to Landlord$2,960.44
- The Bond Centre is to pay the bond of $2,940.00 (3301277-009) to Ying Liu and Lei Chen immediately.
- The tenant’s applications are dismissed.
Reasons
- Both parties attended the hearing. Evidence
- A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
- The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] 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.”
- In the decision that follows I may not have referred to all the considerable oral testimony and other evidence presented, but the parties should know it has been considered where relevant to the applications. Background
- The tenancy commenced on 8 August 2023 and was for a fixed term of 1 year.
- Prior to the tenancy, renovations were carried out at the premises. One of the contractors was Rex Baird, who gave evidence at the hearing.
- The tenant sought and was given access to the property in advance of the tenancy commencing. The tenant says this was because it was not reasonably clean and tidy, and they needed to clean it. The landlord says this was because they wanted to do extra cleaning. The landlord does not accept that the premises was not reasonably clean and tidy, but did not see any reason to deny access.
- Following moving in, the tenant complained that the curtains needed cleaning. The landlord agreed to do that, and asked the tenants to take down the curtains so they could collect them for washing.
- The tenant seeks compensation for the labour involved in taking the curtains down and for an ankle injury sustained while doing so.
- The tenant also seeks compensation for the lack of curtains in the premises, as after the landlord returned the laundered curtains, the tenant refused to hang them.
- The tenant then complained to the landlord that the window seals in the kitchen windows were missing. The landlord provided new window seals and resealed the kitchen windows. The landlord left a roll of foam seal with the tenant for any other windows that needed sealing. The tenant refused to do that themselves, but seeks compensation for other windows they say are not properly sealed.
- The tenant also seek compensation for entry onto property without notice, which relates to the 8 th of August 2023. The tenant alleges that the landlord was at the property when they arrived, without giving the requisite notice. The landlord accepts that he was at the property, outside, because the electricity had been disconnected and the power company required someone to meet them onsite for the reconnection.
- The tenant seeks compensation for mould and moisture issues they allege are present at the address. The landlord denies any issues with mould or moisture. A Health Homes Assessment (HHA) was provided, confirming that the premises is compliant with the Healthy Homes Standards (HHS). Further, Mr Baird’s evidence was that during the times he was present at the premises, both while renovating it prior to the tenancy, and to do work at the landlord’s instruction after the commencement of the tenancy, he did not observe mould or dampness, and in his opinion the premises was warm and dry. Mr Baird’s evidence included reference to previous experience working with social housing providers, and contrasted this premises with damp and mouldy properties he had worked in in that role.
- The tenant seeks compensation for insecure locks at the premises. The tenant’s evidence largely rests on the replacement of the lock after the tenancy. The landlord accepts that the lock was replaced after the tenancy, but notes that this was due to being advised the door knob at the premises was broken on 29 October 2023. The landlord replaced the door knob and locking mechanism accordingly. Further, the landlord, corroborated by Mr Baird, notes that they took steps to further secure the property with an acrylic shield over the door lock at the tenant’s request. This was done during the tenancy.
- The tenancy terminated, by consent, by order of the Tribunal on 30 October 2023. The landlords agreed to the early termination of the fixed term tenancy sought by the tenants. The tenants have sought moving costs.
- Finally, the tenant alleges that the landlord fraudulently stole his identity to complete an amended tenancy agreement. The landlord agrees that there was a varied tenancy agreement, signed by them, sent to the tenants following notice from their insurance company that the excess for a tenanted property had increased to $500. The landlord used the details contained in the original tenancy agreement to complete the new tenancy agreement, including the drivers licence number provided by the tenant. The landlord signed the amended document, the tenant did not. Having seen both documents, I am satisfied that the only change was the insurance excess.
- The tenant denies giving the landlord his drivers licence number and alleges that while the landlord was at the premises to return the curtains, he snuck into the living room, went through their drawers and found the tenant’s drivers licence. From that he completed the new tenancy agreement. The tenant considers this to be identity theft.
- The landlord has applied for rent arrears and has provided rent records which prove the amount owing.
- The tenant does not dispute that rent was not paid. He simply does not believe that he has to pay rent while he had an outstanding dispute with the landlord. Failure to maintain
- Rusheng Huang claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- Having seen the photographs provided by each party and heard the evidence, I am satisfied that the landlord provided the premises in a reasonably clean and tidy condition. While the tenant wished to do extra cleaning, in my opinion that was above and beyond what was required for the commencement of a tenancy.
- In relation to the failure to maintain, this concerns the replacement of the door knob, the window seals and the allegations of mould.
- I accept the landlord’s evidence in relation to the maintenance of the premises and the lack of mould. This evidence is consistent with the photographs provided, the HHA and the evidence of Mr Baird. I consider the landlord responded to the issues raised in a timely manner and the fact that the door lock was replaced after the tenancy does not detract from this. I accept the landlord’s evidence as to the timing of notification that the lock was damaged.
- The tenant’s application is dismissed. Entry without notice
- Rusheng Huang claims the landlord has entered the premises without consent or notice.
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
- The requirement to give notice only relates to entry into the dwelling, and not entry onto the property. Accordingly, the entry by the landlord was not a breach of the Act.
- The tenant’s application is dismissed. Curtains
- The tenant seeks compensation for the labour involved in removing the curtains and then the lack of curtains because they declined to rehang them. Having heard from Mr Baird, who originally hung the curtains, I am satisfied that the landlord provided them in a clean and tidy condition. The agreement to re-wash them was generous in the circumstances. I do not consider that it was necessary for the landlord to remove and rehang the curtains to comply with their obligations in these circumstances.
- In relation to the injury the tenant alleges was sustained, there is no medical evidence in support of this. In addition, the application must be declined for legal reasons.
- In the early 1970’s the Accident Compensation Scheme was introduced in New Zealand. The ACC scheme provides a no-fault scheme to cover people injured from accidents. The ACC scheme introduced what is referred to as the social contract between ACC and the community, meaning that if a person is injured, then ACC cover the injury and the consequences of that. However, in order to obtain that cover, we have given up the right to sue the person who caused the injury.
- Section 317 of the Accident Compensation Act 2001 applies, and that contains what is known as the ‘ACC bar’ to claims for damages, as follows: 317 Proceedings for personal injury (1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of— (a) personal injury covered by this Act; or (b) personal injury covered by the former Acts. (2) Subsection (1) does not prevent any person bringing proceedings relating to, or arising from,— (a)any damage to property; or (b) any express term of any contract or agreement (other than an accident insurance contract under the Accident Insurance Act 1998); or (c) the unjustifiable dismissal of any person or any other personal grievance arising out of a contract of service. (3) However, no court, tribunal, or other body may award compensation in any proceedings referred to in subsection (2) for personal injury of the kinds described in subsection (1).
- What that means is that tenant cannot now bring proceedings against the landlord for any loss arising from that injury. Fraud allegation
- I accept the evidence of the landlord as to how they obtained the tenant’s drivers licence number. The tenant’s allegation is simply not plausible. I further accept that the landlord was motivated by a belief that they needed to update the tenancy agreement to reflect the new insurance excess. The landlord could have met their obligations by an updated insurance notice, rather than a new agreement, however, the manner in which they did it also achieved the desired outcome. I do not accept there was any nefarious intent on the part of the landlord.
- I do not accept that the landlord has breached the law or committed any unlawful acts in relation to this.
- The tenant’s application is dismissed. Moving costs
- The tenancy terminated by agreement. This was a generous position for the landlord to take, given the tenancy was for a fixed term. Further, the landlord was entitled to terminate the tenancy on the basis of rent arrears at the date of the first hearing. Accordingly, there is no basis on which the landlord is obliged to reimburse the tenant for moving costs.
- The application is dismissed. Filing fee
- Because Ying Liu, Lei Chen has wholly succeeded with the claim I must reimburse the filing fee.