What was Tenancy Tribunal case 4893880 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 4893880?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4893880?

The dispute type was not classified.

Where can I read the official tribunal order for case 4893880?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11157368-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4893880 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 4893880?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4893880?

The dispute type was not classified.

Where can I read the official tribunal order for case 4893880?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11157368-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4893880 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s and landlord’s name and identifying details.
The application is dismissed.

Reasons

Mr Herbert appeared for the landlord. [ redacted] appeared for the tenant.
The tenancy commenced on 19 September 2022 and is ongoing.
The property is located below the level of the main sewerage line. The property cannot rely on gravity to remove wastewater. Wastewater and sewerage are collected in a chamber and pumped to the main sewerage line.
The landlord’s claim is that the tenant, or another occupant (likely one of the tenant’s young children), has misused the system by flushing wet wipes or other material that causes blockages.
The landlord is seeking reimbursement for: i. Two unsuccessful visits by plumbers who could not access the property and clear the sewerage system due to a locked gate, and untethered dog, ii. Multiple plumber’s callouts to either clear a blockage or address issues with the pump caused by misuse.
The onus is on the landlord to prove these claims. The standard of proof in civil claims is on the balance of probabilities. The landlord must establish that it is more probable than not the tenant has breached the terms of the tenancy agreement or the provisions of the Residential Tenancies Act 1986 (The “Act”). Failed callouts
On 17 November 2023, approximately 14 months after the commencement of the tenancy, contractors were called to the property to investigate an issue with the sewerage system. The landlord was advised that the chamber in which waste is collected before being pumped to the main sewerage line required emptying. The landlord states their usual practice is to engage an appropriate contractor and ask that they consult directly with the tenant to arrange a suitable time for any visit. In a sense the landlord is relying on the contractor to give notice on their behalf.
The landlord states that while at the address on 17 November 2023, contractors agreed with the tenant to return on 20 November 2023. The landlord states that on that date the contractors visited at the agreed time but were unable to enter the property due to a locked gate and the tenant’s untethered dog. The landlord states that the contractor arranged a second visit a few days later on 23 November 2023, but again were unable to complete the job because the tenant was not home, and the dog was untethered.
The tenant states that no notice was issued by the landlord advising of the date and time of the proposed visit. The tenant states that they were not present on 17 November 2023, and that it may have been their partner who arranged the subsequent visits. The tenant states they operate a business nearby and had previously advised the landlord if there was no one home, to call, and they would come home. The tenant states that burglaries are prevalent in the area, and the dog was an important deterrent. The tenant states that they did not recall receiving any calls from the contractors concerned.
The landlord states that as the contractor had been asked to liaise directly with the tenant, that they had the contact details, and would have called to confirm any visit.
A landlord’s right of entry is contained in section 48 of the Act. 48 Landlord’s right of entry. (1) The landlord shall not enter the premises during the currency of the tenancy agreement, except— (a) with the consent of the tenant freely given at, or immediately before, the time of entry; or (b) in any of the circumstances described in subsections (2) to (3).
Under subsection (2)(ba) a landlord may enter for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry.
A tenant served a valid notice under section 48(2) who fails without reasonable excuse to allow the landlord to enter is in breach of the Act and is liable for any loss caused to the landlord. Decision
The onus is on the landlord to prove that the tenant has failed to meet their obligations under the Act. As stated, there were no notices issued by the landlord. The Act provides default obligations. Without valid notices, a landlord faces challenges bringing claims that the tenant has failed to meet their obligations under the Act to allow visits.
The contractor’s invoice for the failed visits notes, “Animals running around loose despite prior notification.” However, there are no emails or text messages between the landlord and tenant or contractor and tenant confirming the date and times of the proposed visits.
At the material time the tenant’s partner was not listed on the agreement as a tenant, although this changed on 05 January 2024, when there was a variation, and they were added to the agreement. Despite the landlord’s assertion that the contractor would have contacted the tenant, on the evidence I cannot be satisfied that they did. The claims for the failed callouts are dismissed. Misuse of the system
On or about 03 January 2024, contractors attended and found the pump and chamber blocked. The contractors invoice noted “noticed a number of wet wipes and large fat build up.”
On or about 18 January 2024, contractors attended and discovered that the pump required servicing.
On or about 09 February 2024, contractors attended a blocked toilet. The contractor has noted in the invoice “Inspected pump and found this to be blocked by some sort of fibrous wipe, likely either a wet wipe or a paper towel.” The landlord has produced a single photograph taken by the contractor showing the material concerned.
On or about 27 February 2024, the contractor attended and discovered that the chamber was full. The chamber was emptied of 500 litres of waste. The contractor has noted in the invoice that “wipes were clearly visible while removing the contents of the chamber.” The contractor was unable to confirm that wipes had blocked the pump stating that they would have been removed during the emptying process. There are no photographs.
On or about 27 June 2023, contractors again attended the property and found the chamber blocked. The contractor has recorded, “Notes solid and wet wipes at the bottom of the chamber.” A pump technician attended and found the pump working.
On or about 12 July 2024, the contractor attended and discovered that the shower was not draining, investigations revealed that the pump had been turned off. There is no invoice for this call out.
The landlord has produced another photograph taken by a contractor showing what appears to be white material in wastewater in the chamber.
The landlord states that the emptying of the chamber on or about 07 February 2024, had created a clean slate and accepted that it would be difficult to show that the tenant was liable for wet wipes or other similar material located in the chamber up to that date. The landlord states that despite warnings that only toilet paper should be flushed, that an occupant of the property has either intentionally or carelessly continued to flush wet wipes or other matter, such as paper towels. That this had resulted in repeated callouts and extra cost to the landlord over and above that associated with fair wear and tear. Tenant’s response
The tenant denies misusing the system.
The tenant states that they are aware that wet wipes and paper towels must not be flushed down the toilet.
That there were two toilets at the property and access to both was carefully monitored.
The tenant states that none of the occupants have flushed anything else but toilet paper down the toilet.
The tenant states that the previous tenants also had young children.
Although not a plumber, the tenant is a mechanic and claims to possess relevant general knowledge about mechanical systems.
The tenant states that on 09 February 2024 they were present when the contractor took the photograph produced. The tenant states the contractor initially identified the item as a wet wipe but when challenged by the tenant had agreed that it was not.
The tenant states that during the July 2024 contractors visit he had witnessed the contractor adjusting cables near the pumps float, suggesting that the cables may have contributed to the pump not working properly.
The pump had been serviced but had not been replaced.
The tenant stated they had been told by one of the contractors that the pump might not be sufficient to handle both toilets, and that the contractor had suggested using the one toilet.
The tenant believes the line from the chamber to the main sewerage line runs under the property at the front of the section, where it mixes with waste from that property, before being pumped further. The tenant recalls a contractor telling them that there may be an issue with the return valve. The landlord denies this is an issue.
That there had been ongoing issues with the pump, including the alarm frequently sounding suggesting system fault. The tenant stated that they had been reluctant to raise this with the landlord fearing that they would again be blamed. Decision
The issue is whether the material located in the chamber after it was cleared on or about 09 February 2024, was wet wipes or similar fibrous material, and if so, whether its presence in the chamber was the result of an act or omission by the tenant or another occupant of the property.
There is a dispute as to the nature of the material. The only photograph clearly showing material said to be from the chamber was the photograph taken on or about 09 February 2024. The photograph was however taken before the chamber was cleared for the first time later that month.
Although the contractors have stated in their invoices that they witnessed wet wipes or other fibrous material in the chamber, there is no other photographic evidence clearly showing the contents of the chamber after 09 February 2024.
The onus is on the landlord to establish the nature of the material. There is insufficient evidence to make an independent objective assessment, and establish, to the required standard, which is more likely than not, that the material was wet wipes or similar fibrous material. The claim is dismissed. Name suppression.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
The tenant seeks name suppression. The tenant has been wholly successful and is granted name suppression. The landlord does not seek name suppression. However, there is a familial link between the landlord / owner and the tenant. Publishing the landlord’s name may indirectly reveal the identity of the tenant. On that basis I also suppress the name of the landlord.

Reasons

Mr Herbert appeared for the landlord. [ redacted] appeared for the tenant.

The tenancy commenced on 19 September 2022 and is ongoing.

The property is located below the level of the main sewerage line. The property cannot rely on gravity to remove wastewater. Wastewater and sewerage are collected in a chamber and pumped to the main sewerage line.

The landlord’s claim is that the tenant, or another occupant (likely one of the tenant’s young children), has misused the system by flushing wet wipes or other material that causes blockages.

The landlord is seeking reimbursement for: i. Two unsuccessful visits by plumbers who could not access the property and clear the sewerage system due to a locked gate, and untethered dog, ii. Multiple plumber’s callouts to either clear a blockage or address issues with the pump caused by misuse.

The onus is on the landlord to prove these claims. The standard of proof in civil claims is on the balance of probabilities. The landlord must establish that it is more probable than not the tenant has breached the terms of the tenancy agreement or the provisions of the Residential Tenancies Act 1986 (The “Act”). Failed callouts

On 17 November 2023, approximately 14 months after the commencement of the tenancy, contractors were called to the property to investigate an issue with the sewerage system. The landlord was advised that the chamber in which waste is collected before being pumped to the main sewerage line required emptying. The landlord states their usual practice is to engage an appropriate contractor and ask that they consult directly with the tenant to arrange a suitable time for any visit. In a sense the landlord is relying on the contractor to give notice on their behalf.

The landlord states that while at the address on 17 November 2023, contractors agreed with the tenant to return on 20 November 2023. The landlord states that on that date the contractors visited at the agreed time but were unable to enter the property due to a locked gate and the tenant’s untethered dog. The landlord states that the contractor arranged a second visit a few days later on 23 November 2023, but again were unable to complete the job because the tenant was not home, and the dog was untethered.

The tenant states that no notice was issued by the landlord advising of the date and time of the proposed visit. The tenant states that they were not present on 17 November 2023, and that it may have been their partner who arranged the subsequent visits. The tenant states they operate a business nearby and had previously advised the landlord if there was no one home, to call, and they would come home. The tenant states that burglaries are prevalent in the area, and the dog was an important deterrent. The tenant states that they did not recall receiving any calls from the contractors concerned.

The landlord states that as the contractor had been asked to liaise directly with the tenant, that they had the contact details, and would have called to confirm any visit.

A landlord’s right of entry is contained in section 48 of the Act. 48 Landlord’s right of entry. (1) The landlord shall not enter the premises during the currency of the tenancy agreement, except— (a) with the consent of the tenant freely given at, or immediately before, the time of entry; or (b) in any of the circumstances described in subsections (2) to (3).

Under subsection (2)(ba) a landlord may enter for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry.

A tenant served a valid notice under section 48(2) who fails without reasonable excuse to allow the landlord to enter is in breach of the Act and is liable for any loss caused to the landlord. Decision

The onus is on the landlord to prove that the tenant has failed to meet their obligations under the Act. As stated, there were no notices issued by the landlord. The Act provides default obligations. Without valid notices, a landlord faces challenges bringing claims that the tenant has failed to meet their obligations under the Act to allow visits.

The contractor’s invoice for the failed visits notes, “Animals running around loose despite prior notification.” However, there are no emails or text messages between the landlord and tenant or contractor and tenant confirming the date and times of the proposed visits.

At the material time the tenant’s partner was not listed on the agreement as a tenant, although this changed on 05 January 2024, when there was a variation, and they were added to the agreement. Despite the landlord’s assertion that the contractor would have contacted the tenant, on the evidence I cannot be satisfied that they did. The claims for the failed callouts are dismissed. Misuse of the system

On or about 03 January 2024, contractors attended and found the pump and chamber blocked. The contractors invoice noted “noticed a number of wet wipes and large fat build up.”

On or about 18 January 2024, contractors attended and discovered that the pump required servicing.

On or about 09 February 2024, contractors attended a blocked toilet. The contractor has noted in the invoice “Inspected pump and found this to be blocked by some sort of fibrous wipe, likely either a wet wipe or a paper towel.” The landlord has produced a single photograph taken by the contractor showing the material concerned.

On or about 27 February 2024, the contractor attended and discovered that the chamber was full. The chamber was emptied of 500 litres of waste. The contractor has noted in the invoice that “wipes were clearly visible while removing the contents of the chamber.” The contractor was unable to confirm that wipes had blocked the pump stating that they would have been removed during the emptying process. There are no photographs.

On or about 27 June 2023, contractors again attended the property and found the chamber blocked. The contractor has recorded, “Notes solid and wet wipes at the bottom of the chamber.” A pump technician attended and found the pump working.

On or about 12 July 2024, the contractor attended and discovered that the shower was not draining, investigations revealed that the pump had been turned off. There is no invoice for this call out.

The landlord has produced another photograph taken by a contractor showing what appears to be white material in wastewater in the chamber.

The landlord states that the emptying of the chamber on or about 07 February 2024, had created a clean slate and accepted that it would be difficult to show that the tenant was liable for wet wipes or other similar material located in the chamber up to that date. The landlord states that despite warnings that only toilet paper should be flushed, that an occupant of the property has either intentionally or carelessly continued to flush wet wipes or other matter, such as paper towels. That this had resulted in repeated callouts and extra cost to the landlord over and above that associated with fair wear and tear. Tenant’s response

The tenant denies misusing the system.

The tenant states that they are aware that wet wipes and paper towels must not be flushed down the toilet.

That there were two toilets at the property and access to both was carefully monitored.

The tenant states that none of the occupants have flushed anything else but toilet paper down the toilet.

The tenant states that the previous tenants also had young children.

Although not a plumber, the tenant is a mechanic and claims to possess relevant general knowledge about mechanical systems.

The tenant states that on 09 February 2024 they were present when the contractor took the photograph produced. The tenant states the contractor initially identified the item as a wet wipe but when challenged by the tenant had agreed that it was not.

The tenant states that during the July 2024 contractors visit he had witnessed the contractor adjusting cables near the pumps float, suggesting that the cables may have contributed to the pump not working properly.

The pump had been serviced but had not been replaced.

The tenant stated they had been told by one of the contractors that the pump might not be sufficient to handle both toilets, and that the contractor had suggested using the one toilet.

The tenant believes the line from the chamber to the main sewerage line runs under the property at the front of the section, where it mixes with waste from that property, before being pumped further. The tenant recalls a contractor telling them that there may be an issue with the return valve. The landlord denies this is an issue.

That there had been ongoing issues with the pump, including the alarm frequently sounding suggesting system fault. The tenant stated that they had been reluctant to raise this with the landlord fearing that they would again be blamed. Decision

The issue is whether the material located in the chamber after it was cleared on or about 09 February 2024, was wet wipes or similar fibrous material, and if so, whether its presence in the chamber was the result of an act or omission by the tenant or another occupant of the property.

There is a dispute as to the nature of the material. The only photograph clearly showing material said to be from the chamber was the photograph taken on or about 09 February 2024. The photograph was however taken before the chamber was cleared for the first time later that month.

Although the contractors have stated in their invoices that they witnessed wet wipes or other fibrous material in the chamber, there is no other photographic evidence clearly showing the contents of the chamber after 09 February 2024.

The onus is on the landlord to establish the nature of the material. There is insufficient evidence to make an independent objective assessment, and establish, to the required standard, which is more likely than not, that the material was wet wipes or similar fibrous material. The claim is dismissed. Name suppression.

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.

The tenant seeks name suppression. The tenant has been wholly successful and is granted name suppression. The landlord does not seek name suppression. However, there is a familial link between the landlord / owner and the tenant. Publishing the landlord’s name may indirectly reveal the identity of the tenant. On that basis I also suppress the name of the landlord.

Tenancy Tribunal case 4893880 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4893880 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions