What was the outcome of Tenancy Tribunal case 4939773?

The tribunal order states: Goran & Len Kacurov & Stulich must pay Millie Erceg Trustee No. 3 Limited

How much money was awarded in case 4939773?

Cleaning: $350.00 awarded to landlord; Property Damage: $3,300.00 awarded to landlord; Rubbish Removal: $200.00 awarded to landlord

What type of tenancy dispute was case 4939773?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4939773?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11183871-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4939773?

The tribunal order states: Goran & Len Kacurov & Stulich must pay Millie Erceg Trustee No. 3 Limited

How much money was awarded in case 4939773?

Cleaning: $350.00 awarded to landlord; Property Damage: $3,300.00 awarded to landlord; Rubbish Removal: $200.00 awarded to landlord

What type of tenancy dispute was case 4939773?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4939773?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11183871-Tribunal_Order.pdf.

86 McLeod Road, Te Atatu South, Auckland 0610 Tenancy Tribunal Case 4939773 — Property damage

Claims and awards in Tenancy Tribunal application 4939773 — net $3,850.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$350.00	Cleaning
Rubbish removal	$200.00	to the point where they are more likely than not. The tenant is ordered to pay $200.00 towards the hire of the rubbish skip only.
Repairs: Insurance excess x 6	$3,300.00	Repairs: Insurance excess x 6
Net award	$3,850.00
Total payable by Tenant to Landlord	$3,850.00

Claims and awards in Tenancy Tribunal application 4939773 — net $3,850.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$350.00	Cleaning
Rubbish removal	$200.00	to the point where they are more likely than not. The tenant is ordered to pay $200.00 towards the hire of the rubbish skip only.
Repairs: Insurance excess x 6	$3,300.00	Repairs: Insurance excess x 6
Net award	$3,850.00
Total payable by Tenant to Landlord	$3,850.00

Order

Goran & Len Kacurov & Stulich must pay Millie Erceg Trustee No. 3 Limited Ivan Vladimir Erceg $3,850.00 immediately, calculated as shown in table below.

Reasons

Both parties attended this remote teleconference hearing on 26 November 2024. The matter had been part heard on 16 September 2024.
Ivan Erceg appeared as a trustee for the Millie Erceg Trust. Len Stulich appeared as a representative for Goran Kacurov.
The hearing related to premises at 86 McLeod Rd, Auckland. The tenancy commenced on 26 October 2009 and ended on 29 December 2023.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the landlord must establish that what they are claiming is more likely than not.
The term “balance of probabilities” means more likely than unlikely, 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 more likely than not. I do not need to be completely certain, but I need to be more certain than uncertain. In making a decision, I am not required to make a finding on who is telling the truth. The parties should consider a finding adverse to them to simply be an order relating to the outcome being more likely than not. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like 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.” (the emphasis is mine).
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, both parties have submitted documentary evidence including emails, photos and invoices. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
The landlord claims are: • Compensation for cleaning. • Compensation for rubbish removal • Compensation for plumbing costs. • Compensation for damage. Cleaning.
Landlords are required to provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (see s 45(1)(a) RTA). Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy (ss 40(1)(c) and (e)(iii) RTA).
In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
The RTA does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable; not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).
Contractual provisions that require a tenant to have the premises professionally cleaned at the end of the tenancy are generally unenforceable (s.11 RTA). Commercial carpet cleaning will only be only required where this is necessary to return the carpet to a reasonably condition.
The landlord provided an email from his cleaners in support of the claim. The claim is for $715.00 being 5.5 hours for two cleaners at $65.00 per hour. The cleaners said that the walls were greasy, extra attention was required for the bathroom, kitchen, light fixture, extractor fan and mould on the blinds. The landlord accepted that the cleaning had been carried out to bring the premises back to a standard where they could be relet.
The tenant says that the landlord has not provided any evidence of the condition of the premises at the commencement of the tenancy. No pre tenancy report or inspection reports have been provided.
The burden of proving the claim falls on the landlord. I accept, based on the report from the cleaners, that the premises were not reasonably clean and tidy. I record that the standard required for the tenant at the end of the tenancy is “reasonably clean and tidy.” That standard is generally accepted to be a lower standard that a landlord might expect when placing premises on the market for rent. The landlord said that the cleaning had been done to bring the premises back to a standard where they could be relet. That is a higher standard than that required of the tenant. In light of that information, I consider that a reasonable compensation to bring the premises to the required standard would be $350.00. The tenant is ordered to pay $350.00 in compensation.
The landlord seeks compensation of $300.00 for the hire of a rubbish skip and 4 hours labour at $65.00 per hour for rubbish removal. The landlord provided photos of a rubbish skip which seems to be full of garden waste. The landlord said that there was overgrown vegetation and carpet pieces that needed to be removed.
The burden of proving the claim is on the landlord. Section 85 RTA sets out the manner in which the Tribunal is to exercise its jurisdiction. That section provides that the Tribunal shall exercise its jurisdiction in a manner most likely to ensure the fair resolution of disputes and that consideration should be given to the substantial merits and justice of the case. Taking that direction into account, I am satisfied that some garden rubbish needed to be removed. I am not satisfied that labour costs have been proven to the point where they are more likely than not. The tenant is ordered to pay $200.00 towards the hire of the rubbish skip only.
The landlord seeks compensation of $287.50 for plumber’s costs. The landlord said that the downstairs drain was blocked. A plumber was called to investigate. The plumbers invoice refers to a drain being hydro blasted, and a CCTV camera being used. The plumber discovered that the cause of the blockage was a cueball. I am not satisfied that the landlord has been able to provide evidence to show that it is more likely than not that the cue ball had been placed in the drain by the tenant during the course of the tenancy. The claim is dismissed.

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 careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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. The landlord is insured. The policy of insurance carries an excess of $550.00 on each and every claim.
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.
The following damage was caused during the tenancy. The landlord has claimed on his policy of insurance and as a result each claim relates to the insurance excess applicable to that claim.
The first issue for the landlord is whether the damages claimed occurred during the tenancy. The landlord refers to the Tenancy Agreement which includes a property condition report. There is no reference in the report to any pre-existing damage.
The landlord relies on evidence from the insurance assessor. The insurance assessor’s report refers to the following; • Lounge door- damaged when moving out. • Hole in wall in the main hall • Sliding door in wardrobe in the front bedroom has a chip in it. • There are tears in the vinyl floor of the dining room. • The door and jamb to the dining room have been damaged. • The kitchen bench has a burn mark. • There is a chip on the moulding in the second hall. • There are multiple chips in the door in the second hall. • The bathroom shower door is missing. • There is a hole in the wall in bedroom 3. • The basement vinyl flooring has water damage after the outlet pipe was blocked.
A limited number of photos were provided showing holes in walls and doors.
The tenant said that there was no evidence of the condition of the premises at the commencement of the tenancy. The tenant said that over the course of the 14 year tenancy the landlord did no maintenance and any repairs were carried out by the tenant at no costs to the landlord. The tenant says that any damage was as a result of normal wear and tear over a lengthy period and the landlord failure to maintain the premises. Invoices and statements were provided by the tenant showing the maintenance work carried out on behalf of the tenant. I need to make it clear at this point that the tenant has not filed a counterclaim against the landlord and accordingly I cannot make any order with regards to any failure to maintain by the landlord.
A tenant is not liable for fair wear and tear, which means damage during the ordinary use of an item. The District Court held in Nixon v Geal-Otter DC North Shore TT 216/94, 30 January 1996 that “ Mere use of the premises will by the law of inevitability produce a deterioration in condition...Where a landlord proves the existence of damage, the landlord should also assume the burden of proof to exclude fair wear and tear. If a tenant raises a plausible explanation that points to fair wear and tear as an explanation, the landlord will fail in the claim.” Fair wear and tear includes damage during ordinary use. It may also explain the failure of landlord fittings and appliances. Damage to an item during its ordinary use, does not of itself mean that the tenant will be liable for the damage.
I consider that the tenant has raised a plausible argument as to fair wear and tear on the following claims and they are accordingly dismissed. • Sliding door in wardrobe with chip in it. • Tears in vinyl floor. • Chip to corner moulding. • Chips to door.
I do not consider that there is sufficient evidence to persuade the Tribunal that the claim relating to the basement vinyl damage was as a result of anything the tenant did, nor that it necessarily occurred during the tenancy. The claim is dismissed.
The landlord has proven that the remaining events of damage occurred during the tenancy and are not as a result of fair wear and tear. The remaining events all have what might be called “impact damage”. The damage is more than fair wear and tear and the tenant has not disproven liability and accordingly the claims for the insurance excess are successful. • Lounge door- damaged when moving out. • Hole in wall in the main hall • The door and jamb to the dining room have been damaged. • The kitchen bench has a burn mark. • The bathroom shower door is missing. • There is a hole in the wall in bedroom 3.
The amounts ordered are proven. The tenant is to pay the landlord $3,300.00.
The landlord seeks compensation for 3 sets of blinds that had been present at the commencement of the tenancy. The blinds had been stored in an outside shed by the tenant and had deteriorated and become rusty. They are not covered by the landlord’s insurance and the landlord has provided an invoice for $1,005. 00 for replacement blinds. The landlord accepted that the blinds predated the commencement of this tenancy.
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 considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. Taking into account both depreciation of the blinds over a lengthy period and the issue of betterment to the landlord, I make no order for compensation.
The tenant applied for name suppression. The tenant has not been wholly or substantially successful in this matter and the application for suppression is dismissed.

Tenancy Tribunal case 4939773 — Property damage at 86 McLeod Road, Te Atatu South, Auckland 0610

At a glance

Tenancy Tribunal case 4939773 — Property damage at 86 McLeod Road, Te Atatu South, Auckland 0610

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions