What was Tenancy Tribunal case 4703189 about?

The tribunal order states: Cheryl Irving As Trustee For The Donneur Trust must pay [The tenant/s]

How much money was awarded in case 4703189?

Rent Overpayment: $565.00 awarded to tenant; Water Rates: $21.28 awarded to landlord

What type of tenancy dispute was case 4703189?

The dispute type was not classified.

Where can I read the official tribunal order for case 4703189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9855353-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4703189 about?

The tribunal order states: Cheryl Irving As Trustee For The Donneur Trust must pay [The tenant/s]

How much money was awarded in case 4703189?

Rent Overpayment: $565.00 awarded to tenant; Water Rates: $21.28 awarded to landlord

What type of tenancy dispute was case 4703189?

The dispute type was not classified.

Where can I read the official tribunal order for case 4703189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9855353-Tribunal_Order_Redacted.pdf.

8 Drayton Street, Richmond, Richmond 7020 Tenancy Tribunal Case 4703189 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4703189 — net $543.72 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates	$21.28		Water rates
Rent overpayment		$565.00	Rent overpayment
Total award	$21.28	$565.00
Net award		$543.72
Total payable by Landlord to Tenant		$543.72

Both parties attended the hearing.

The tenancy ended 30 September 2023. After the final inspection the bond was released to the tenants.

The tenants sought return of one weeks rent and exemplary damages.

The landlord sought compensation for damage subsequently discovered shortly after the final inspection and water rates.

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 oral testimony and other evidence presented, but the parties should know it has been considered where relevant. The tenant application

It was not disputed between the parties that the tenants had overpaid rent by one week, being $565.00. The tenants acknowledged a liability for water rates $21.28 and were happy for that to be deducted from the rent credit.

In addition to the return of the overpaid rent, less the water rates, the tenant sought exemplary damages for unlawful entry by the landlord, unlawful clause in the tenancy agreement, interference with the tenants’ quiet enjoyment, and a loss of income due to having to attend this hearing.

Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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 (“RTA”). Unlawful entry

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 tenants cited two instances where they believe there was unlawful entry by the landlord.

The first was an inference from a landlord email that highlighted the need for cleaning inside. Apart from that there was no other evidence of any entry prior to that email. The landlord denied ever entering the premises at this time. There is no evidence to support the conclusion of the tenants and I do not find it proven there was unlawful entry proceeding any email as claimed.

The second time was on 5 April 2023 when the tenant returned to the premises and found the landlord in the process of rehanging or adjusting some curtains. This was done during a legitimate entry for the purposes of a contractor completing a healthy homes assessment. There does not appear to have been an issue regarding the landlord’s actions at that time but it was raised in this application.

The actions of the landlord in attending to the curtains at that time were not a consequence of the intended purpose for entry. However, given the activity and the lack of any issue at the time, any technical breach is such that the threshold of unlawful activity and exemplary damages is not met and no order for exemplary damages are made. Quiet enjoyment

The tenants complained of excessive direction from the landlord regarding maintenance at the premises. A limited number of text messages were provided as evidence. It is apparent from some of the documentation that the landlord is attentive and concerned to ensure the premises are maintained.

The tenants claims the landlord has harassed them.

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in this case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.

In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: “Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.”

From these definitions it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder Palmerston North TT 12/87, 16 March 1987 the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”

The tenants have failed to establish it more likely than not that the landlord interfered with their quiet enjoyment such that compensation or exemplary damages should follow. No order for either is made.

The additional grounds for exemplary damages cited were based on an additional term in the tenancy agreement the required the tenants to commercially clean the carpet at the end of the tenancy. At the end of the tenancy the tenants did not believe there was a need for commercial carpet cleaning. Despite the landlord requesting this, there was no claim from the landlord regarding any subsequent carpet cleaning costs it may have incurred. Section 11 RTA provides that any agreement or arrangement, entered into in respect of a tenancy to which the RTA applies, that is inconsistent with any of the provisions of it, shall be of no effect. A requirement to commercially clean carpet is not a provision of the RTA.

I concur with the tenants that the contracted requirement to have the carpets commercially cleaned is not enforceable. That this was the cause of some dispute at the end of the tenancy is unfortunate. I have no evidence or claim from the landlord that such cleaning was required. However, I do not consider the insertion of this requirement or the subsequent demand for it to be such that exemplary damages should be ordered. The landlord is experienced and rightly commented that some time back such clauses were routine and acceptable. She should now be aware of the change in how such clauses are typically viewed by the Tribunal.

The final grounds for exemplary damages cited were a loss of income to attend the hearing. I do not find such citation has a correlation to any section in the RTA that makes provision for any such a loss to be unlawful.

I make no orders for tenant compensation or exemplary damages against the landlord. The landlord’s application

The landlord claimed that the tenant was responsible for damage to a stainless- steel sink bench drain. $200.00 compensation was sought. The house was near new. Before this tenancy there had been only one short-term tenancy.

In support of the claim the landlord provided a photo from the ingoing inspection, highlighted reference in the ingoing inspection report that noted the kitchen bench and sink as “clean and unmarked”. The ingoing inspection was jointly conducted, and the tenant made other amendments to the property inspection report at that time.

At the end of the tenancy a joint final inspection was conducted. No significant issues were raised at that time and a bond release form, releasing the bond in full to the tenants, was signed and taken away by the tenant.

I heard from the landlord that shortly after the tenant left the premises she used a cloth to remove a layer of dried cleaning product over the bench drain and it was then that she discovered significant scratching of the surface. She did not recall seeing such damage during prior inspections.

An immediate attempt to contact the tenant to discuss this was unsuccessful and the bond release form was processed, with the bond returned to the tenants.

Subsequently, the landlord sought $200.00 compensation from the tenants and withheld return of the overpayment of rent in lieu of any bond. Photos of the damage were provided.

It appears that any damage to the bench drain was not apparent during the tenancy and the landlord believes the damage occurred during the final stages of the tenancy, more likely when the tenants were away on an overseas holiday and a family member was staying at the premises during the week when in Nelson. The extent of use of the kitchen during this time is uncertain.

I accept there has been a deterioration in the bench drain during this tenancy. Based on the photographs of the damage provided I struggle to conclude that it was the result of a single event, or a series of events within a short timeframe, near the end of the tenancy.

I note the damage is cosmetic and the bench drain remains functional and in use under a new tenancy. The landlord believes compensation is appropriate for what I would term “accelerated depreciation”. It is unclear if, and at what point, in the future the approximately $2000 cost to replace the bench drain will be incurred.

The amount sought was such that any discussion regarding insurance excess was moot however I remain unclear why the landlord would not have sought insurance cover for the damage that it believes was due to careless tenant action.

The tenants, in turn, claim that the damage was fair wear and tear, such damage being an exception to tenant liability (see s 49A(2)).

Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.

Under section 49B (8)(a)(i), the onus is on the landlord to establish that the damage is not fair wear and tear.

The landlord stated a breadboard was provided by the previous tenants and that should have been used to prevent any cutting that it believed damaged the surface. I heard from the tenants that there was no dish rack or such provided and it was usual practice to place cleaned items from the sink directly on the surface to dry as necessary.

Having considered the submissions and further reviewed the evidence I do not find the landlord has been able to prove the damage was more than fair wear and tear of an area that may be expected to show signs of deterioration through expected use. The standard of proof is the balance of probabilities. I am not satisfied that it is met and I must dismiss the claim.

Even if I am wrong in this dismissal, it is a well-accepted principle when awarding compensation for damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach. Liability exists for foreseeable losses flowing from the breach.

Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common-sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party. If required to consider compensation, I would have turned my mind to the nature of the damage and any need for repair and any compensation order would not be automatic.

I acknowledge the landlord believes the tenant intended to mask the damage and if so intended, such an attempt would be understandably disappointing. I have no view on that and I have treated the landlord claim for compensation on the evidence presented.

I dismiss the application of the landlord for compensation. Application filing fee

Neither party has had sufficient success with their application to merit any order for application filing fee costs to be returned. Each party is to carry their own cost of filing. Suppression

Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

Given the lack of success of either party there is no automatic suppression.

Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.

The tenants requested suppression in their application. The landlord requested suppression at the hearing when asked if this was sought.

Having considered both applications, the interests of the parties and public interest, I decline to exercise my initiative to order suppression of the landlord details. The retention of overpaid rent was not justified and left the tenant needing to bring their application. The overpayment of rent is not an extension or replacement of the protection of the bond. I consider the tenants have established sufficient justification in bringing their application to have the rent credit returned. I order suppression of their details.

This order is released after 5pm hence it is dated from tomorrow.

Reasons

Claims and awards in Tenancy Tribunal application 4703189 — net $543.72 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Water rates	$21.28		Water rates
Rent overpayment		$565.00	Rent overpayment
Total award	$21.28	$565.00
Net award		$543.72
Total payable by Landlord to Tenant		$543.72