What was Tenancy Tribunal case 4934075 about?

The tribunal order states: Viliami Netane must pay Barfoot & Thompson Limited As Agent For Christopher

How much money was awarded in case 4934075?

Credit: $63.71 awarded to tenant; Bedroom 2 Repainting: $150.00 awarded to landlord; Lounge Wall Repainting: $150.00 awarded to landlord; Replace furnishings: Carpet- bedroom…: $100.00 awarded to landlord; Replace Furnishings: Carpet- Hallway: $150.00 awarded to landlord; Replace Furnishings: Carpet- Lounge: $150.00 awarded to landlord

What type of tenancy dispute was case 4934075?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4934075?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11037028-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4934075 about?

The tribunal order states: Viliami Netane must pay Barfoot & Thompson Limited As Agent For Christopher

How much money was awarded in case 4934075?

Credit: $63.71 awarded to tenant; Bedroom 2 Repainting: $150.00 awarded to landlord; Lounge Wall Repainting: $150.00 awarded to landlord; Replace furnishings: Carpet- bedroom…: $100.00 awarded to landlord; Replace Furnishings: Carpet- Hallway: $150.00 awarded to landlord; Replace Furnishings: Carpet- Lounge: $150.00 awarded to landlord

What type of tenancy dispute was case 4934075?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4934075?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11037028-Tribunal_Order.pdf.

Unit/Flat 8, 74 Walmsley Road, Otahuhu, Auckland 1062 Tenancy Tribunal Case 4934075 — Property damage

Claims and awards in Tenancy Tribunal application 4934075 — net $636.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: lounge wall repainting	$150.00		Repairs: lounge wall repainting
Repairs: bedroom 2 repainting	$150.00		Repairs: bedroom 2 repainting
Replace furnishings: Carpet- lounge	$150.00		Replace furnishings: Carpet- lounge
Replace furnishings: Carpet- hallway	$150.00		Replace furnishings: Carpet- hallway
Replace furnishings: Carpet- bedroom 2	$100.00		Replace furnishings: Carpet- bedroom 2
Credit		$63.71	Credit
Total award	$700.00	$63.71
Net award	$636.29
Total payable by Tenant to Landlord	$636.29

Order

Viliami Netane must pay Barfoot & Thompson Limited As Agent For Christopher Chin $636.29 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing, conducted via video with the tenant joined by telephone only.
The landlord has applied for compensation for costs incurred due to damage by the tenant or others at the premises.
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.”
The landlord advised of a small credit of $63.71 in favour of the tenant. That has been returned via this order, applied against the debt.
This was a long tenancy. It commenced 14 June 2018 and ended 28 May 2024.

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 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.
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.
“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.
The following damage was caused during the tenancy: Lounge: wall repainting and carpet stains
The landlord provided photos of a number of holes that had been patched. The tenant acknowledged some damage had occurred (by a family member) and the patching was done by him. The carpet showed staining, albeit some were pre-existing based on the earlier inspection report of 2019.
The damage to both the carpet and walls are more than fair wear and tear. The landlord claim for $3,728.00 from the insurer was paid less a $1,500.00 excess. Hallway: carpet stains
The carpet was stained, above what might be considered wear and tear. Some pre-existing stains were likely. The insurer paid $2007.90 less an excess of $1,500.00. Bedroom 2: wall repainting and carpet stains
The landlord provided photos of a number of holes that had been patched. The tenant acknowledged some damage had occurred (by a family member) and the patching was done by him. The carpet showed staining, albeit some were pre-existing based on the earlier inspection report of 2019.
The damage to both the carpet and walls are more than fair wear and tear. The landlord claim for $2,903.07 from the insurer was paid less a $1,500.00 excess.
The net sum paid by the insurer was $4,139.57. The two receipts provided were painting with the invoice describing the job as “interior painting” for $3,800.00, and the second $2,840.50 for carpet replacement. The difference between the settlement and invoices was a cost to the landlord of $2,500.
There was no ingoing condition report. There was, however, one from September 2019 provided. That showed the premises condition in what was described mainly in the landlord report as either “poor” or “fair”, mostly in relation to maintenance issues. It is uncertain what, if any, maintenance occurred from that time until the end of the tenancy.
The walls and carpets appear well past their economic life. Some wall covering was previous wallpaper painted over (evidenced by some lifting). The tenant repairs to the holes, while not total, appear of a reasonable quality. The painters invoice refers to painting only so the assumption is repairs were sufficient to not form a separate repair task of any note.
It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party should be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.
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.
I have determined an appropriate compensation sum of $800.00 (as detailed in the order) reflects the actual age and condition of the carpet and walls, as well as recognises the betterment to the landlord via the insurance coverage. Filing fee
Given the limited success of the landlord I make no order regarding the application 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 landlord requested suppression in its application. As it has not been wholly or substantially successful, suppression is not ordered. The tenant was realistic about the cause of the damage, and the subsequent repairs. Given the age and condition of the premises, a more balanced or realistic engagement with the tenant may have seen an earlier resolution via mutual agreement.

Claims and awards in Tenancy Tribunal application 4934075 — net $636.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: lounge wall repainting	$150.00		Repairs: lounge wall repainting
Repairs: bedroom 2 repainting	$150.00		Repairs: bedroom 2 repainting
Replace furnishings: Carpet- lounge	$150.00		Replace furnishings: Carpet- lounge
Replace furnishings: Carpet- hallway	$150.00		Replace furnishings: Carpet- hallway
Replace furnishings: Carpet- bedroom 2	$100.00		Replace furnishings: Carpet- bedroom 2
Credit		$63.71	Credit
Total award	$700.00	$63.71
Net award	$636.29
Total payable by Tenant to Landlord	$636.29

Order

Viliami Netane must pay Barfoot & Thompson Limited As Agent For Christopher Chin $636.29 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing, conducted via video with the tenant joined by telephone only.
The landlord has applied for compensation for costs incurred due to damage by the tenant or others at the premises.
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.”
The landlord advised of a small credit of $63.71 in favour of the tenant. That has been returned via this order, applied against the debt.
This was a long tenancy. It commenced 14 June 2018 and ended 28 May 2024.

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 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.
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.
“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.
The following damage was caused during the tenancy: Lounge: wall repainting and carpet stains
The landlord provided photos of a number of holes that had been patched. The tenant acknowledged some damage had occurred (by a family member) and the patching was done by him. The carpet showed staining, albeit some were pre-existing based on the earlier inspection report of 2019.
The damage to both the carpet and walls are more than fair wear and tear. The landlord claim for $3,728.00 from the insurer was paid less a $1,500.00 excess. Hallway: carpet stains
The carpet was stained, above what might be considered wear and tear. Some pre-existing stains were likely. The insurer paid $2007.90 less an excess of $1,500.00. Bedroom 2: wall repainting and carpet stains
The landlord provided photos of a number of holes that had been patched. The tenant acknowledged some damage had occurred (by a family member) and the patching was done by him. The carpet showed staining, albeit some were pre-existing based on the earlier inspection report of 2019.
The damage to both the carpet and walls are more than fair wear and tear. The landlord claim for $2,903.07 from the insurer was paid less a $1,500.00 excess.
The net sum paid by the insurer was $4,139.57. The two receipts provided were painting with the invoice describing the job as “interior painting” for $3,800.00, and the second $2,840.50 for carpet replacement. The difference between the settlement and invoices was a cost to the landlord of $2,500.
There was no ingoing condition report. There was, however, one from September 2019 provided. That showed the premises condition in what was described mainly in the landlord report as either “poor” or “fair”, mostly in relation to maintenance issues. It is uncertain what, if any, maintenance occurred from that time until the end of the tenancy.
The walls and carpets appear well past their economic life. Some wall covering was previous wallpaper painted over (evidenced by some lifting). The tenant repairs to the holes, while not total, appear of a reasonable quality. The painters invoice refers to painting only so the assumption is repairs were sufficient to not form a separate repair task of any note.
It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party should be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.
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.
I have determined an appropriate compensation sum of $800.00 (as detailed in the order) reflects the actual age and condition of the carpet and walls, as well as recognises the betterment to the landlord via the insurance coverage. Filing fee
Given the limited success of the landlord I make no order regarding the application 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 landlord requested suppression in its application. As it has not been wholly or substantially successful, suppression is not ordered. The tenant was realistic about the cause of the damage, and the subsequent repairs. Given the age and condition of the premises, a more balanced or realistic engagement with the tenant may have seen an earlier resolution via mutual agreement.

Tenancy Tribunal case 4934075 — Property damage at Unit/Flat 8, 74 Walmsley Road, Otahuhu, Auckland 1062

At a glance

Tenancy Tribunal case 4934075 — Property damage at Unit/Flat 8, 74 Walmsley Road, Otahuhu, Auckland 1062

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