What was Tenancy Tribunal case 4881800 about?

The tribunal order states: [The tenant/s] is to pay Judith Bunyan $229.02 from the bond, calculated as

How much money was awarded in case 4881800?

Property Damage: $190.00 awarded to landlord; Replacing Cistern: $39.02 awarded to landlord

What type of tenancy dispute was case 4881800?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4881800?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10926327-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4881800 about?

The tribunal order states: [The tenant/s] is to pay Judith Bunyan $229.02 from the bond, calculated as

How much money was awarded in case 4881800?

Property Damage: $190.00 awarded to landlord; Replacing Cistern: $39.02 awarded to landlord

What type of tenancy dispute was case 4881800?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4881800?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10926327-Tribunal_Order_Redacted.pdf.

70A Victoria Avenue, Whakatane, Whakatane 3120 Tenancy Tribunal Case 4881800 — Property damage

Claims and awards in Tenancy Tribunal application 4881800 — net $229.02 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation for damage to Tulip tree	$190.00	ss of the Tulip tree caused by the careless pruning and order the tenant to pay $190.00 as claimed by the landlord. Royal purple Smoke bush (Smoke bush)
Repairs: Replacing cistern	$39.02	Repairs: Replacing cistern
Net award	$229.02
Bond	$1,180.00
Total payable by Tenant to Landlord	$229.02

Claims and awards in Tenancy Tribunal application 4881800 — net $229.02 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation for damage to Tulip tree	$190.00	ss of the Tulip tree caused by the careless pruning and order the tenant to pay $190.00 as claimed by the landlord. Royal purple Smoke bush (Smoke bush)
Repairs: Replacing cistern	$39.02	Repairs: Replacing cistern
Net award	$229.02
Bond	$1,180.00
Total payable by Tenant to Landlord	$229.02

Order

[The tenant/s] is to pay Judith Bunyan $229.02 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,180.00 ([Bond number suppressed]) immediately apportioned as follows: Judith Bunyan: $229.02 [The tenant/s]: $950.98

Reasons

Both parties attended the hearing in person. Representation
The tenant was represented at the hearing by his health support worker Ms Dobbison.
Section 93 (2) of the Residential Tenancies Act states a party is not entitled to be represented at the hearing by counsel or by a representative, except where the other party consents or the amount in dispute exceeds $6,000.00. The landlord did not object to the tenant having a representative and it appeared the landlord’s claim may have exceeded $6,000.00.
Given the tenant has a support worker, which I was advised during the hearing was because the tenant has a brain injury, it was appropriate that his representative assisted him at the hearing. The tenant confirmed any information provided by his representative was true. Landlord’s claim
The landlord has applied for compensation for damage, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Tenant’s claim
The tenant has applied for a refund of the bond.
At the hearing the tenant raised a further claim in relation to the landlord potentially terminating the tenancy without grounds. I explained to the tenant that this matter had not been raised in the application and therefore the landlord was not on notice of the claim, and I declined to hear the matter. The tenant may still file that claim but it cannot be “tabled” and considered as part of this hearing process. Tenancy
The tenancy was periodic and commenced on 1 June 2018 and ended on 9 July 2024 following the landlord giving the tenant 90 days’ notice of termination of the tenancy for “breaching the tenancy agreement”. Relevant legal considerations
The relevant law that applies is found in the Residential Tenancies Act 1986 (RTA). With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike 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.
Section 85 of the RTA requires the Tribunal to exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants and to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but it is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
The Tribunal has determined this application with these provisions in mind.
In the decision that follows I may not have referred to all the oral evidence and documentation provided, but the parties should know that I have considered all evidence. Damage

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. Careless damage
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.
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.
The landlord confirmed at the hearing that the insurance excess is $800.00- and four-weeks rent is $1,340.00. Intentional damage
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) of the 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. Betterment and depreciation
I must take 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 must take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Damage in this case

TREE REMOVAL

The landlord says that the tenant damaged or removed two trees and a bush on the property during the tenancy.
In support of the claim the landlord provided a letter they had sent to the tenant on 28 May 2024 stating the amount claimed for replacement of the trees and bush. No quotes or invoices were provided in support of the claim. The landlord advised that she had not actually replaced the trees or bush. Petulant Pendula Alba Silverbirch (Silverbirch)
The landlord applies for the cost of replacing a Silverbirch tree of $125.00.
The parties agreed that at the start of the tenancy there was two Silverbirch trees on the property.
Shortly after the tenancy commenced the tenant recalls one of the Silverbirch trees being removed and assumed the landlord removed it. The landlord denies having one of the Silverbirch trees removed.
Also shortly after the tenancy commenced, the other Silverbirch tree died. It is this tree that the landlord claims compensation for and alleges the tenant caused the tree to die.
The tenant denied poisoning the Silverbirch tree and the landlord says at the time she accepted this explanation.
There is no evidence that the tenant either intentionally or carelessly damaged the Silverbirch tree. This claim is dismissed. Mature Magnolia Tulip tree (Tulip Tree)
The landlord claims $190.00 to replace a Tulip tree.
The tenant acknowledges that he pruned the Tulip tree as it was close to his window and leaves from the tree would come through the window and make a mess, which the landlord would then complain about.
When he would leave the window closed the landlord would complain that he was not properly ventilating the premises. The Tulip tree was pruned to the point that all that remained was the stump and two short branches.
The tenant accepts that the landlord did not provide specific consent for him to prune the Tulip tree. I consider the landlord should be compensated for the loss of the Tulip tree caused by the careless pruning and order the tenant to pay $190.00 as claimed by the landlord. Royal purple Smoke bush (Smoke bush)
The landlord claimed $94.00 for a Smoke bush.
The landlord explained that the Smoke bush appears to have been removed through pruning by the tenant. The tenant accepted pruning of the Smoke bush and says that it had died through no fault of his own. I do not consider the tenant damaged the Smoke bush or was responsible for it dying. The claim is dismissed.

CARPORT

The landlord claimed $668.45 which related to an invoice for repairing the carport. The invoice was for removing damaged roofing iron, replacing with new roofing iron and installing a new trellis wall on the carport and supplying materials. At the hearing the landlord itemised the invoice to clarify the separate claims.
The landlord advised that four trellis were purchased for $480.00. The remainder of the invoice relates to the damaged purlin and the roofing iron which appeared to have been patched up.
The landlord gave evidence that something heavy must have fallen on the roof to split the iron. The landlord considered it most likely that this was a tree that the neighbour had felled. The landlord’s position is that the tenant must have noticed the damage and should have informed her.
The landlord takes the same position in relation to the trellis. That is, that while the tenant may not be responsible for removing the trellis, he should have informed her of its removal.
Both parties agree that there was a new neighbour that shared the fence line and, that the new neighbour had cut their trees down. Neither party could give any dates as to when the damage might have occurred, although the tenant indicated it was shortly before the landlord observed the damage on 4 April 2024, at an inspection. Her previous inspection she advised would have been six months prior.
The tenant’s evidence was that he did not notice the damaged purlin, or the missing trellis. The patchwork on the roofing iron could not be seen from below and I accept the tenant would not have seen this damage to the roofing iron.
It seems more probable than not that the neighbour caused the damage to the carport and trellis and the tenant may not have noticed it.
I therefore do not consider that the tenant should be liable for damage caused by the neighbour and dismiss the claim in relation to the carport damage. I have also considered the submission that the tenant failed to notify the landlord of the damage but dismiss that claim as I accept the tenant was not aware the damage had occurred.

INTERIOR PAINTING

The landlord provided a quote for $6,325.00 for the painting of interior walls and exterior painting of a fascia board. The landlord’s application was for a percentage of this cost and at the hearing, when pressed by me, the landlord sought $500.00 from the tenant towards the interior painting.
The landlord provided a pre-inspection property report which confirmed that parts of the premises had been newly painted at the commencement of the tenancy and that other rooms were in good condition.
The landlord says the that the tenant was smoking cigarettes inside the premises which has left permanent staining. The landlord has never seen the tenant smoking inside the premises. The landlord did not provide any photographs to support claim.
The tenant denied smoking in the property. The tenant advised that when he smoked it was outside the property and over the past two years, he has been a vaper.
The landlord has not proven that the tenant should be responsible for any damage to the paint work or that the damage even occurred. The claim for painting costs is dismissed.

TOILET CISTERN

The landlord claimed $390.24 in relation to replacing the toilet cistern. The landlord advised the toilet was installed in 1995. The landlord provided an invoice in support of the claim and during the hearing played a voice message from the plumbing firm advising that flush valve locking tabs are missing which is why the water was running. The landlord’s position was if the tabs had broken off through wear and tear, they would still be in the cistern.
The tenant denies any responsibility for the toilet being broken.
The landlord has proven that a piece of the toilet cistern appears to have been damaged during the tenancy and that this is more than fair wear and tear. The tenant has not disproved liability for the damage. I consider this damage was more likely than not caused by a careless action of the tenant. In taking into to account betterment and depreciation I award 10% of the claim – being $39.02. The amount awarded is less than the landlord insurance excess for careless damage.

CARPET

The landlord claimed a percentage of the cost of replacing the carpet. The quote that was provided in support of the claim was $2,293.24. When pressed on how much of this the landlord was claiming the landlord responded that ultimately, she would just want the bond back.
I raised that there did not appear to be any indication that the tenant has intentionally damaged the carpet and if I was to find that they had carelessly damaged the carpet then the maximum amount I could award was the insurance excess of $800.00.
The landlord advised that the carpets were laid in 2008. The landlord was unable to show me any specific areas of damage caused by the tenant to the carpet as photographs were not provided in support.
Shortly before the tenancy ended the landlord required the tenant to have the carpet professionally cleaned which he did so at his personal cost.
Without photographs to support the claim from the landlord I consider that any damage would amount to fair wear and tear. The claim in respect of the carpet is dismissed.
The landlord had provided a quote to replace the lino but advised at the hearing that they were not seeking these costs from the tenant. Bond
Part of the bond is to be paid to the landlord immediately for the amount ordered and the balance is to be paid to the tenant. Filing fee
Because neither party has wholly succeeded with their claims, I consider it appropriate that neither reimburse the other for the filing fee. Suppression
The landlord did not seek name suppression.
The tenant sought name suppression as they have had some success, I have made an order accordingly.

Tenancy Tribunal case 4881800 — Property damage at 70A Victoria Avenue, Whakatane, Whakatane 3120

At a glance

Tenancy Tribunal case 4881800 — Property damage at 70A Victoria Avenue, Whakatane, Whakatane 3120

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

TREE REMOVAL

CARPORT

INTERIOR PAINTING

TOILET CISTERN

CARPET

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

TREE REMOVAL

CARPORT

INTERIOR PAINTING

TOILET CISTERN

CARPET

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions