What was Tenancy Tribunal case 4832319 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4832319?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4832319?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4832319?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10645260-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4832319 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4832319?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4832319?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4832319?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10645260-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4832319 — Property damage

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant names and identifying details.
[The tenant/s] must pay Ray White Remuera Property Management Limited As Agent For Teague Investments Ltd $550.00 immediately, being the insurance excess for a garage door repair.

Reasons

Both parties attended the hearing, conducted via teleconference.
The landlord has applied for compensation for the $1,200.00 insurance excess for repairs to a garage door.
The tenant counterclaimed, seeking exemplary damages per s 49D RTA.
A previous order ([redacted]) awarded the tenant the remaining bond, application filing fee, and exemplary damages of $200.00 relating to the landlord’s failure to notify the tenants of changes in the landlord’s insurance policy excess.
The tenancy commenced 15 January 2022. The tenancy agreement stated the insurance excess was $550.00. Unbeknownst to the property manager or tenant, the owner revised the excess upwards to $1200.00 during the tenancy, without advising their agent or the tenants. Landlord claim

Is the tenant responsible for the damage to the garage door?

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. See section 49B(3)(a) RTA.
“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 careless damage are not fair wear and tear. The landlord must prove that damage is beyond fair wear and tear for compensation.
In May 2023, a garage door was damaged by the tenant reversing into it. In July 2023 the tenants provided the landlord with a quote for repairs to the door. Installed but unpainted, this quote was for $1,685.00. No response from the landlord was received.
There was email discussion between the parties regarding a claim for the damage via the tenants’ car insurance but that never progressed for reasons that remain uncertain to me. The excess for the car insurance was $400.00 and at that time the assumed home policy excess was $550.00.
The owner subsequently lodged an insurance claim and advised their agent of the increased excess amount of $1,200.00. The tenant was not provided the new policy documents until after the tenancy had ended.
The damage is more than fair wear and tear. The landlord claimed the damage was careless while the tenant claimed it was accidental and therefore not a tenant liability. It clearly was not intentional damage.
The tenant has gone to some effort to evidence the conditions that day. The damage was caused while reversing the car into the driveway. This was a manoeuvre conduced by the tenant many times before. Spatial awareness during such reversing relied on external markers to confirm the car’s location for stopping to the driver.
On the day of the damage, the tenant experienced sunstrike that prevented the confirmation via the usual marker. The vehicle continued (slowly) and the tow bar struck the wooden panel garage door. No damage to the car occurred.
The tenant immediately notified the landlord and accepted responsibility. Subsequently, the tenant position regarding liability changed, in part due to frustration with the tardiness of the landlord in dealing with that, and the bond after the tenancy ended.

Was it accidental or careless damage?

The damage was not wear and tear. Therefore, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage.
Essentially, if accidental rather than careless the tenant would not be liable.
Accidental damage is not considered or defined in the RTA. Accidental damage, being lesser than careless, is damage that is greater than fair wear and tear but could not have been reasonable anticipated or prevented. Examples of such may include a medical event that leads to a collapse of a tenant who in falling damages part of the premises, where no prior indication of the medical event presented.
Careless damage is damage that is caused by an inadvertent lack of reasonable care.
Careless damage was considered in Bolton v Stone [1951] AC 850. In that decision the usual meaning was described as “the lack of care, negligence or lack of forethought... Also heedless or thoughtless, and can cover a situation of inadvertent lack of care. The standard of care is the standard of an ordinary careful person. An ordinary careful person is not expected to take precautions against every foreseeable risk, but only against those risks that are reasonably likely to happen.”
A test for careless driving is whether the motorist exercised the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. That is not a standard of perfection. Accidents happen. Sometimes accidents are faultless. Sometimes fault just cannot be proven.
Is this instance, having considered the evidence and submissions, I consider the landlord correct to categorise the damage as careless. That does not reflect any significant negligence of the tenant but having considered the circumstances of the event, I consider the tenant, as driver, bears responsibility for the damage. The sunstrike might have been anticipated or mitigated. Regardless, when it interfered with any exact positioning while reversing, a quicker stop at that time would have more than likely have prevented the impact and damage as occurred.
The tenants are liable for the damage repair.

What was the applicable excess?

The tenancy agreement stated the insurance excess as $550.00. This was correct at the time of signing.
The subsequent increase in the insurance excess to $1,200.00 by the owner should have been advised to the tenants at that time. It is considered the greater excess may have alerted the tenants more appropriately to their potential liability for damages and better inform them to manage accordingly. That is one major purpose of the Insurance Statement.
Given the failure to notify, I consider it appropriate and equitable here for the tenant liability to be capped at the notified excess of $550.00.
The landlord is awarded $550.00. That amount is significantly lesser than the tenant sourced quote for repair. I did consider the lost opportunity for the tenant to attempt to use their car insurance, given the stated lower excess of $400.00. However, considering the uncertain success of any claim, as well as the actual overall cost if successful (be it a loss of no-claims bonus or increased premiums), the eventual cost may reasonably be expected to be similar. Tenant claim
The tenant sought exemplary damages per s 49D that, in part, states it unlawful to demand, from the tenant payment of an amount related to destruction of, or damage to, the premises that exceeds the tenant’s liability in accordance with s 49B RTA.
Section 49B(3) limits the tenant liability to the lesser of the applicable excess or four week rent.
The tenant rightfully pointed to the previous order where the Adjudicator noted the disputed amount of $1.200.00 versus the tenancy agreement record of $550.00. This, however, was only noted by the Adjudicator in the reasons as an aside and no declaration or order was made regarding the liability amount for any excess.
While I find the “applicable excess” here to be that as recorded in the tenancy agreement, the Act is not specific on this and I do not consider the landlord precluded from making the claim as what is “applicable” may differ from case to case. The previous order did not preclude such a claim.
I find no unlawful act and dismiss the tenant application for exemplary damages. The compensations claims regarding costs due to these applications are not costs that can be awarded (see s 102(1) RTA). Filing fee
Given the determination reflects some success for both parties I leave each party to carry their respective filing fee. 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.
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 were granted suppression in their initial application. I consider it appropriate to continue that order here. While tenant liability for the damage was established, the tenants have acted in a reasonable manner since the damage and have had to engage in this protracted dispute resolution for a longer period, with a greater impact on them, than might have been reasonably expected.

Tenancy Tribunal case 4832319 — Property damage

At a glance

Tenancy Tribunal case 4832319 — Property damage

At a glance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the garage door?

Was it accidental or careless damage?

What was the applicable excess?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the garage door?

Was it accidental or careless damage?

What was the applicable excess?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions