What was Tenancy Tribunal case 4849500 about?

The tribunal order states: Triumph Trust Edwin Franken must pay James Taylor and Eden Rogers $20.44

How much money was awarded in case 4849500?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4849500?

The primary dispute was Mould & damp. Related themes: Leaks.

Where can I read the official tribunal order for case 4849500?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10506202-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4849500 about?

The tribunal order states: Triumph Trust Edwin Franken must pay James Taylor and Eden Rogers $20.44

How much money was awarded in case 4849500?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4849500?

The primary dispute was Mould & damp. Related themes: Leaks.

Where can I read the official tribunal order for case 4849500?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10506202-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 7 Parkhill Road, Morningside, Auckland 1022 Tenancy Tribunal Case 4849500 — Mould & damp

Order

Triumph Trust Edwin Franken must pay James Taylor and Eden Rogers $20.44 immediately, being the filing fee.
The Bond Centre is to pay the bond of $1,290.00 () to James Taylor and Eden Rogers immediately.

Reasons

Both parties attended the hearing, conducted via video/tele conference.
The tenant application sought the return of their bond.
The landlord sought compensation for a single cost incurred.
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.” Background
This tenancy commenced 18 December 2021 and ended 26 March 2024. In May 2023 the tenants noticed deterioration in the base of the under-sink cabinetry. This was noticed after the return from an overseas holiday and reported to the landlord. Photo at that time was provided and it is copied below:
The landlord investigated the damage following the disclosure by the tenants. There was quickly a difference of opinion regarding the cause and liability for the damage. This was some 10 months before the tenancy ended and the stalemate effectively continued until the end of the tenancy. That meant no repair was made and the tenants continued with the base as presented. As I said at the hearing, it would have been more appropriate for the landlord was sought a decision from the Tribunal at the time so that resolution and appropriate repairs could have occurred then rather than at the end of the tenancy.
Essentially, the tenants believe that the damage was not caused by any careless or intentional action.
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
In this instance the tenants did advise the landlord of the problem but after the investigation and disagreement no repair was made until the end of the tenancy.
Approximately four years ago (likely installed June 2020) the premises underwent a major refurbishment including new kitchen cabinetry. There was one tenancy after the refurbishment before this tenancy. No ingoing condition photo was available to ascertain the condition at commencement. A photo after the repair confirms it was completed. Discussion
The evidential burden is on the applicant. The landlord must prove that damage is beyond fair wear and tear for compensation.
“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.
During the hearing the photograph of the damage, and other related photographs were reviewed and discussed. The landlord believed the cause of the damage was a leaking aerosol can of oven cleaner. Photos clearly show a number of rusted rings consistent with the base of aerosol cans. I did question the landlord regarding those rings and the location of the “ruptured” paint. Any direct causation of the rupture relating to the rings as shown was not obvious to me. The landlord suggested that some other rings might have been wiped away. No compelling evidence for this was presented.
The tenants maintained they were not liable and proposed an alternative cause being moisture ingress from the subfloor after a flooding incident. They also had video evidence of some water leakage from the plumbing in the exposed cavity. If that did occur, I have the same causation challenge between any leak and its likely localised impact, vs the demonstrated damage to the base.
An ingoing condition photograph may have been informative, if taken at a similar scale to that taken at the time of the damage being discovered. Once the integrity of any waterproof surface over MDF is compromised it becomes more vulnerable to moisture ingress, swelling and damage.
Having considered the evidence and the respective submissions I do not find the landlord has been able to evidence tenant liability to the required standard such that any order for compensation should be made. The damage is clearly visible but the cause, and any subsequent liability, remains uncertain in my mind.
Given that, I must dismiss landlord application and return the bond in full to the tenants. Filing Fee
Because James Taylor, Eden Rogers has wholly succeeded with the claim I must reimburse the filing fee.

Order

Triumph Trust Edwin Franken must pay James Taylor and Eden Rogers $20.44 immediately, being the filing fee.
The Bond Centre is to pay the bond of $1,290.00 () to James Taylor and Eden Rogers immediately.

Reasons

Both parties attended the hearing, conducted via video/tele conference.
The tenant application sought the return of their bond.
The landlord sought compensation for a single cost incurred.
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.” Background
This tenancy commenced 18 December 2021 and ended 26 March 2024. In May 2023 the tenants noticed deterioration in the base of the under-sink cabinetry. This was noticed after the return from an overseas holiday and reported to the landlord. Photo at that time was provided and it is copied below:
The landlord investigated the damage following the disclosure by the tenants. There was quickly a difference of opinion regarding the cause and liability for the damage. This was some 10 months before the tenancy ended and the stalemate effectively continued until the end of the tenancy. That meant no repair was made and the tenants continued with the base as presented. As I said at the hearing, it would have been more appropriate for the landlord was sought a decision from the Tribunal at the time so that resolution and appropriate repairs could have occurred then rather than at the end of the tenancy.
Essentially, the tenants believe that the damage was not caused by any careless or intentional action.
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
In this instance the tenants did advise the landlord of the problem but after the investigation and disagreement no repair was made until the end of the tenancy.
Approximately four years ago (likely installed June 2020) the premises underwent a major refurbishment including new kitchen cabinetry. There was one tenancy after the refurbishment before this tenancy. No ingoing condition photo was available to ascertain the condition at commencement. A photo after the repair confirms it was completed. Discussion
The evidential burden is on the applicant. The landlord must prove that damage is beyond fair wear and tear for compensation.
“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.
During the hearing the photograph of the damage, and other related photographs were reviewed and discussed. The landlord believed the cause of the damage was a leaking aerosol can of oven cleaner. Photos clearly show a number of rusted rings consistent with the base of aerosol cans. I did question the landlord regarding those rings and the location of the “ruptured” paint. Any direct causation of the rupture relating to the rings as shown was not obvious to me. The landlord suggested that some other rings might have been wiped away. No compelling evidence for this was presented.
The tenants maintained they were not liable and proposed an alternative cause being moisture ingress from the subfloor after a flooding incident. They also had video evidence of some water leakage from the plumbing in the exposed cavity. If that did occur, I have the same causation challenge between any leak and its likely localised impact, vs the demonstrated damage to the base.
An ingoing condition photograph may have been informative, if taken at a similar scale to that taken at the time of the damage being discovered. Once the integrity of any waterproof surface over MDF is compromised it becomes more vulnerable to moisture ingress, swelling and damage.
Having considered the evidence and the respective submissions I do not find the landlord has been able to evidence tenant liability to the required standard such that any order for compensation should be made. The damage is clearly visible but the cause, and any subsequent liability, remains uncertain in my mind.
Given that, I must dismiss landlord application and return the bond in full to the tenants. Filing Fee
Because James Taylor, Eden Rogers has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4849500 — Mould & damp at Unit/Flat 3, 7 Parkhill Road, Morningside, Auckland 1022

At a glance

Tenancy Tribunal case 4849500 — Mould & damp at Unit/Flat 3, 7 Parkhill Road, Morningside, Auckland 1022

At a glance

Claims & awards

Order

Reasons

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Residential Tenancies Act sections

Key findings

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Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions