What was Tenancy Tribunal case 4793317 about?

The tribunal order states: [The tenant/s] to pay [The landlord/s] $2,020.44 from the bond, calculated as

How much money was awarded in case 4793317?

Filing Fee: $20.44 awarded to landlord; Property Damage: $2,000.00 awarded to landlord

What type of tenancy dispute was case 4793317?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4793317?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10046467-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4793317 about?

The tribunal order states: [The tenant/s] to pay [The landlord/s] $2,020.44 from the bond, calculated as

How much money was awarded in case 4793317?

Filing Fee: $20.44 awarded to landlord; Property Damage: $2,000.00 awarded to landlord

What type of tenancy dispute was case 4793317?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4793317?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10046467-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4793317 — Property damage

Claims and awards in Tenancy Tribunal application 4793317 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs	$2,000.00	Repairs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Bond	$2,480.00
Total payable by Tenant to Landlord	$2,020.44

Order

[The tenant/s] to pay [The landlord/s] $2,020.44 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,480.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $2,020.44 [The tenant/s]: $459.56

Reasons

Both parties attended the hearing.
The landlord has applied for compensation, refund of the bond and reimbursement of the filing fee following the end of the tenancy. The tenants seek release of the bond.
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that each party must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “... like 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.” (the emphasis is mine).
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 evidence during the hearing). I must weigh this evidence to decide what is more likely.

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 careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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 excess on the landlord’s insurance policy relates to each and every individual claim for damage.
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.
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.
The parties essentially agree on the background facts. The premises were a new build when the tenancy commenced in 2020. At the commencement of the tenancy the tenants checked with their property manager to see if they could put pictures on the walls. The pictures would be attached to the wall by screws. The property manager said that this would be acceptable and that any damage caused to the walls at the end of the tenancy when the screws were removed would be “fair wear and tear”.
At the end of the tenancy, the tenants removed the screws and, in an attempt, to remediate the holes where screws had been removed, have plastered the holes and painted over the plaster and other marks.
The landlord provided photos of the walls. The wrong tint of white has been used by the tenant which has left the walls with a checkerboard effect.
The tenant accepts that the wrong tint of white has been used.
I find based on the photographic evidence that damage has been caused. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The issue that I have relates to the quantum of the claim. The landlord has provided an invoice from the painter and a brief statement setting out the work required. The landlord says that 15 individual walls needed to be repaired. This included refilling some areas as the touch ups had shrunk, sand out the plaster, sand flush the paint strokes, seal the newly plastered areas, sand out the brush stroke areas, masking tape the skirtings and door frames and then paint the damaged walls with the correct paint colour.
The amount claimed is $3,405.15.
The landlord was unable to provide a break down of the hourly rate charged or the costs of the materials.
I have reviewed the work done. I have taken into account 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 calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
Having considered those factors, I consider that the landlord is entitled to compensation in the sum of $2,000.00.
As [The landlord/s] has substantially succeeded with the claim I have ordered the tenant to reimburse the filing fee.
Both parties have applied for name suppression. I consider that both parties have been substantially successful in this matter and suppression of both the tenant and landlord names and details is ordered.

Claims and awards in Tenancy Tribunal application 4793317 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs	$2,000.00	Repairs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Bond	$2,480.00
Total payable by Tenant to Landlord	$2,020.44

Order

[The tenant/s] to pay [The landlord/s] $2,020.44 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,480.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $2,020.44 [The tenant/s]: $459.56

Reasons

Both parties attended the hearing.
The landlord has applied for compensation, refund of the bond and reimbursement of the filing fee following the end of the tenancy. The tenants seek release of the bond.
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that each party must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “... like 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.” (the emphasis is mine).
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 evidence during the hearing). I must weigh this evidence to decide what is more likely.

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 careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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 excess on the landlord’s insurance policy relates to each and every individual claim for damage.
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.
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.
The parties essentially agree on the background facts. The premises were a new build when the tenancy commenced in 2020. At the commencement of the tenancy the tenants checked with their property manager to see if they could put pictures on the walls. The pictures would be attached to the wall by screws. The property manager said that this would be acceptable and that any damage caused to the walls at the end of the tenancy when the screws were removed would be “fair wear and tear”.
At the end of the tenancy, the tenants removed the screws and, in an attempt, to remediate the holes where screws had been removed, have plastered the holes and painted over the plaster and other marks.
The landlord provided photos of the walls. The wrong tint of white has been used by the tenant which has left the walls with a checkerboard effect.
The tenant accepts that the wrong tint of white has been used.
I find based on the photographic evidence that damage has been caused. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The issue that I have relates to the quantum of the claim. The landlord has provided an invoice from the painter and a brief statement setting out the work required. The landlord says that 15 individual walls needed to be repaired. This included refilling some areas as the touch ups had shrunk, sand out the plaster, sand flush the paint strokes, seal the newly plastered areas, sand out the brush stroke areas, masking tape the skirtings and door frames and then paint the damaged walls with the correct paint colour.
The amount claimed is $3,405.15.
The landlord was unable to provide a break down of the hourly rate charged or the costs of the materials.
I have reviewed the work done. I have taken into account 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 calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
Having considered those factors, I consider that the landlord is entitled to compensation in the sum of $2,000.00.
As [The landlord/s] has substantially succeeded with the claim I have ordered the tenant to reimburse the filing fee.
Both parties have applied for name suppression. I consider that both parties have been substantially successful in this matter and suppression of both the tenant and landlord names and details is ordered.

Tenancy Tribunal case 4793317 — Property damage

At a glance

Tenancy Tribunal case 4793317 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions