What was Tenancy Tribunal case 4738237 about?

The tribunal order states: Kendra McGillivray and Tiaki Cuthbertson must pay Caroline Jessop and Mark

How much money was awarded in case 4738237?

Cleaning: $200.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Paint Not Purchased – Repay To Landl…: $700.00 awarded to landlord; Rent Arrears: $2,601.40 awarded to landlord; 2 Doors: $900.00 awarded to landlord; Property Damage: $754.00 awarded to landlord; Holes In Walls (Incl Redecorating: $1,800.00 awarded to landlord

What type of tenancy dispute was case 4738237?

The primary dispute was Property damage. Related themes: Rent arrears, Cleanliness.

Where can I read the official tribunal order for case 4738237?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10103098-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4738237 about?

The tribunal order states: Kendra McGillivray and Tiaki Cuthbertson must pay Caroline Jessop and Mark

How much money was awarded in case 4738237?

Cleaning: $200.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Paint Not Purchased – Repay To Landl…: $700.00 awarded to landlord; Rent Arrears: $2,601.40 awarded to landlord; 2 Doors: $900.00 awarded to landlord; Property Damage: $754.00 awarded to landlord; Holes In Walls (Incl Redecorating: $1,800.00 awarded to landlord

What type of tenancy dispute was case 4738237?

The primary dispute was Property damage. Related themes: Rent arrears, Cleanliness.

Where can I read the official tribunal order for case 4738237?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10103098-Tribunal_Order.pdf.

42 Scotland Street, Roxburgh, Roxburgh 9500 Tenancy Tribunal Case 4738237 — Property damage

Claims and awards in Tenancy Tribunal application 4738237 — net $6,975.84 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$2,601.40	Rent arrears
Repairs: Holes in walls (incl redecorating	$1,800.00	Repairs: Holes in walls (incl redecorating
Repairs: 2 doors	$900.00	Repairs: 2 doors
Repairs: Front door - replacement and painting	$754.00	Repairs: Front door - replacement and painting
Cleaning	$200.00	Cleaning
Paint not purchased – repay to landlord	$700.00	Paint not purchased – repay to landlord
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,975.84
Total payable by Tenant to Landlord	$6,975.84

Order

Kendra McGillivray and Tiaki Cuthbertson must pay Caroline Jessop and Mark Jessop $6,975.84 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing, conducted via video conference. This was a continuation and the landlord provided a revised list of compensation claims, as at 24 January 2024.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
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 appropriate.

How much is owed for rent?

The tenancy ended on 8 November 2023. The landlord provided rent records which, after discussion and adjustment downwards after tenant input, prove the amount owing at the end of the tenancy is as ordered.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
A reasonable state of cleanliness is not an absolute standard and does not require premises to be immaculate. “Reasonably clean” means to the standard an average, reasonable bystander would consider reasonable (Housing New Zealand v Holloway TT213/93, 8 February 1993). Whether or not a landlord has failed to provide the premises in a reasonable state of cleanliness involves an objective assessment and takes into account the age, and general condition of the property at the start of the tenancy (see s 45(1)(a)).
The landlord claims the tenants did not leave the premises reasonably clean and tidy. A generous rent rebate to the new tenants was made in consideration of work undertaken. A similar arrangement was entered into at the start of this tenancy. However, the supporting evidence does not justify such largesse (4 weeks free rent for cleaning and a number of other tasks). I have based compensation of the available evidence and award $200.00 towards the cleaning conducted by the new tenants, primarily for the oven and some other minor tasks.
The landlord has provided $700.00 1 to the tenants for the purchase of paint for work to be completed. This money was never used for such a purpose; it is returned to the landlord by order.
The amounts ordered are proved.

Is the tenant responsible for the damage to the premises?

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 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. The insurance excess here was $1,200.00.
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. 1 The application specified $800.00 but that was uncertain and I have used the alternative $700.00 as discussed at the hearing.
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.
“Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or negligent damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.
The following damage was caused during the tenancy: a. Holes in a number of walls. Likely caused intentionally by striking. These required plastering and painting. Having considered the repair strategy and costs involved, I have determined an appropriate compensation sum to be $1,800.00. b. Two doors had holes made in them. They were repaired at a cost of $900.00. c. The front door framing was damaged. An invoice for $654.00 established the repair cost and a further $100.00 has been apportioned for the paint finish that was required.
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The amounts ordered are proved.
I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In considering depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Fence
A boundary fence required replacement. The landlord approved the tenant getting a quote. A local contractor visited. Without any landlord approval the fence was replaced and the landlord invoiced.
Understandably the landlord was upset with what appeared unauthorised work (and cost) that they believed was the tenant’s fault and liability. Having heard from both parties, and considered the support evidence, I do not find it proven the tenant ever gave approval for the work. Even if so, given the contractor was aware of the landlords’ contact details (as they were invoiced directly) it would be a reasonable expectation that owner approval was sought by a contractor before incurring work that totalled $3,604.10. The invoice was reluctantly paid by the landlord, without dispute, at that time.
For the reasons above I dismiss the claim for $3,604.10. Other claims declined
The landlord sought further compensation for a missing key for the sliding door. The actual door is being or has been replaced and there is no loss established as no locksmith has been engaged.
A wooden bedroom window was not closing. The landlord believes this was a result of the tenants leaving the window open. It was planed by the new tenant. I do not find it proven this repair was other than that required due to fair use. Application filing fee
Because Caroline Jessop, Mark Jessop have substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4738237 — net $6,975.84 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$2,601.40	Rent arrears
Repairs: Holes in walls (incl redecorating	$1,800.00	Repairs: Holes in walls (incl redecorating
Repairs: 2 doors	$900.00	Repairs: 2 doors
Repairs: Front door - replacement and painting	$754.00	Repairs: Front door - replacement and painting
Cleaning	$200.00	Cleaning
Paint not purchased – repay to landlord	$700.00	Paint not purchased – repay to landlord
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,975.84
Total payable by Tenant to Landlord	$6,975.84

Order

Kendra McGillivray and Tiaki Cuthbertson must pay Caroline Jessop and Mark Jessop $6,975.84 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing, conducted via video conference. This was a continuation and the landlord provided a revised list of compensation claims, as at 24 January 2024.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
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 appropriate.

How much is owed for rent?

The tenancy ended on 8 November 2023. The landlord provided rent records which, after discussion and adjustment downwards after tenant input, prove the amount owing at the end of the tenancy is as ordered.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
A reasonable state of cleanliness is not an absolute standard and does not require premises to be immaculate. “Reasonably clean” means to the standard an average, reasonable bystander would consider reasonable (Housing New Zealand v Holloway TT213/93, 8 February 1993). Whether or not a landlord has failed to provide the premises in a reasonable state of cleanliness involves an objective assessment and takes into account the age, and general condition of the property at the start of the tenancy (see s 45(1)(a)).
The landlord claims the tenants did not leave the premises reasonably clean and tidy. A generous rent rebate to the new tenants was made in consideration of work undertaken. A similar arrangement was entered into at the start of this tenancy. However, the supporting evidence does not justify such largesse (4 weeks free rent for cleaning and a number of other tasks). I have based compensation of the available evidence and award $200.00 towards the cleaning conducted by the new tenants, primarily for the oven and some other minor tasks.
The landlord has provided $700.00 1 to the tenants for the purchase of paint for work to be completed. This money was never used for such a purpose; it is returned to the landlord by order.
The amounts ordered are proved.

Is the tenant responsible for the damage to the premises?

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 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. The insurance excess here was $1,200.00.
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. 1 The application specified $800.00 but that was uncertain and I have used the alternative $700.00 as discussed at the hearing.
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.
“Fair wear” is deterioration caused by the reasonable use of the premises. “Fair tear” is deterioration caused by the ordinary operation of the forces of nature. Importantly, intentional or negligent damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.
The following damage was caused during the tenancy: a. Holes in a number of walls. Likely caused intentionally by striking. These required plastering and painting. Having considered the repair strategy and costs involved, I have determined an appropriate compensation sum to be $1,800.00. b. Two doors had holes made in them. They were repaired at a cost of $900.00. c. The front door framing was damaged. An invoice for $654.00 established the repair cost and a further $100.00 has been apportioned for the paint finish that was required.
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The amounts ordered are proved.
I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In considering depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Fence
A boundary fence required replacement. The landlord approved the tenant getting a quote. A local contractor visited. Without any landlord approval the fence was replaced and the landlord invoiced.
Understandably the landlord was upset with what appeared unauthorised work (and cost) that they believed was the tenant’s fault and liability. Having heard from both parties, and considered the support evidence, I do not find it proven the tenant ever gave approval for the work. Even if so, given the contractor was aware of the landlords’ contact details (as they were invoiced directly) it would be a reasonable expectation that owner approval was sought by a contractor before incurring work that totalled $3,604.10. The invoice was reluctantly paid by the landlord, without dispute, at that time.
For the reasons above I dismiss the claim for $3,604.10. Other claims declined
The landlord sought further compensation for a missing key for the sliding door. The actual door is being or has been replaced and there is no loss established as no locksmith has been engaged.
A wooden bedroom window was not closing. The landlord believes this was a result of the tenants leaving the window open. It was planed by the new tenant. I do not find it proven this repair was other than that required due to fair use. Application filing fee
Because Caroline Jessop, Mark Jessop have substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4738237 — Property damage at 42 Scotland Street, Roxburgh, Roxburgh 9500

At a glance

Tenancy Tribunal case 4738237 — Property damage at 42 Scotland Street, Roxburgh, Roxburgh 9500

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions