What was Tenancy Tribunal case 4993728 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 4993728?

Filing Fee: $27.00 awarded to landlord; Kitchen Tiles: $3,581.26 awarded to landlord; Property Damage: $713.00 awarded to landlord; Replace Heat Pump Cover: $519.62 awarded to landlord

What type of tenancy dispute was case 4993728?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4993728?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11256922-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4993728 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 4993728?

Filing Fee: $27.00 awarded to landlord; Kitchen Tiles: $3,581.26 awarded to landlord; Property Damage: $713.00 awarded to landlord; Replace Heat Pump Cover: $519.62 awarded to landlord

What type of tenancy dispute was case 4993728?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4993728?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11256922-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4993728 — Property damage

Claims and awards in Tenancy Tribunal application 4993728 — net $4,840.88 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Kitchen tiles	$3,581.26	Kitchen tiles
Replace heat pump cover	$519.62	Replace heat pump cover
Repair kitchen bench top	$713.00	Repair kitchen bench top
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$4,840.88
Total payable by Tenant to Landlord	$4,840.88

Claims and awards in Tenancy Tribunal application 4993728 — net $4,840.88 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Kitchen tiles	$3,581.26	Kitchen tiles
Replace heat pump cover	$519.62	Replace heat pump cover
Repair kitchen bench top	$713.00	Repair kitchen bench top
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$4,840.88
Total payable by Tenant to Landlord	$4,840.88

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s and tenant’s name and identifying details.
[The tenant/s] must pay [The landlord/s] $ 4,840.88 immediately, calculated as shown in table below.

Reasons

The tenancy commenced on 26 October 2015 and is current. The tenant is a charitable community organisation that supports individuals with special needs.
The property was constructed in 2013, consists of four bedrooms, a study, a main bathroom, a separate toilet, an ensuite, an open plan kitchen / dining / lounge, a laundry, and an internal garage.
The occupants of the property are clients of the tenant who have special needs. They are not sub tenants and reside at the property under a licence to occupy.
Around early October 2023, one of the occupants was involved in an incident that resulted in damage to windows, the heat pump, the kitchen bench top, and the kitchen tiles. The tenant repaired the windows. A dispute has arisen regarding liability for the other damage. The parties have been unable to resolve the dispute.
On 03 September 2024, the landlord filed a claim with the Tribunal, seeking compensation of $4,775.01 to repair the kitchen tiles, $519.62 to replace the front cover to the heat pump, and $713.00 to repair the bench top.
On 16 October 2024, the claim was set down for a video hearing on 02 December 2024.
[The landlord’s representative/s] appeared for the landlord. [The tenant’s representative/s] appeared for the tenant. [The tenant’s representative/s] is employed by the tenant’s insurance company. Law
The general principles for liability for damage are set out in section 49B of the Act: 49A General principle (1) Except as provided in section 49B, a tenant has no liability or obligation, and must not be required, to— (a) meet the cost of making good any destruction of, or damage to, the premises; or (b) indemnify the landlord against the cost of making good the destruction or damage; or (c) pay damages related to the destruction or damage; or (d) carry out any works to make good the destruction or damage. (2) A tenant is not, in any case, liable for fair wear and tear.
Section 49B of the Act sets out when a tenant is liable for damage: 49B When tenant liable (1) A tenant is not excused from liability or obligation by section 49A (1) if, and to the extent that, — (a) the destruction or damage was intentionally done or caused by the tenant or by a person for whose actions the tenant is responsible under section 41 or 66L; or (b) the destruction or damage was the result of an act or omission by the tenant or by a person for whose actions the tenant is responsible under section 41 or 66L and the act or omission occurred on or about the premises and constitutes an imprisonable offence. (2) To the extent provided in subsection (3), the tenant is liable to the landlord for destruction of, or damage to, the premises that is caused by a careless act or omission of the tenant or of a person for whose actions the tenant is responsible under section 41 or 66L, other than an act or omission described in subsection (1). (3) The tenant’s liability under subsection (2) is limited, — (a) if the property is insured against the destruction or damage, to the lesser of the applicable excess under the insurance and whichever of the following is applicable: (i) if the tenant pays an income-related rent within the meaning of section 2(1) of the Public and Community Housing Management Act 1992, the market rent within the meaning of section 2(1) of that Act for the premises for a period of 4 weeks: (ii) in any other case, the rent under the tenancy agreement for a period of 4 weeks; or (b) otherwise, to whichever of the following is applicable: (i) if the tenant pays an income-related rent within the meaning of section 2(1) of the Public and Community Housing Management Act 1992, the market rent within the meaning of section 2(1) of that Act for the premises for a period of 4 weeks: (ii) in any other case, the rent under the tenancy agreement for a period of 4 weeks. (4) However, — (a) if any insurance moneys that would otherwise have been payable because of the destruction or damage are irrecoverable because of an act or omission of the tenant or of a person for whose actions the tenant is responsible under section 41 or 66L, for the purposes of subsection (3) the property is treated as not insured against the destruction or damage (and therefore subsection (3)(b) sets out the limit of the tenant’s liability under subsection (2)); and (b) see also clause 19 of Schedule 1AA (for other circumstances where subsection (3)(b) sets out the limit of the tenant’s liability under subsection (2), regardless of whether the property is insured against the destruction or damage). (5) To avoid doubt, a tenant’s liability under subsection (2) may, if the tenancy agreement so provides or the tenant and landlord so agree, be satisfied by the tenant carrying out works to make good the destruction or damage up to a value of the liability limit in subsection (3). (6) Unless the damage is the result of an action described in subsection (1), a tenant’s obligations under section 42(6) (removal of a fixture) to repair damage or to compensate the landlord for expenses incurred in repairing damage are limited to work of a value, or payment of an amount, up to the liability limit set out in subsection (3). (7) Destruction or damage of which the landlord becomes aware after this section comes into force is presumed to have occurred after this section came into force unless the tenant proves otherwise. (8) If any destruction of, or damage to, the premises is proved to have occurred during any tenancy to which this Act applies, — (a) it is for the landlord to prove— (i) that any damage is not fair wear and tear; and (ii) that any destruction or damage occurred in circumstances described in subsection (1)(b); and (iii) that any insurance moneys are irrecoverable for the reasons described in subsection (4)(a); and (b) it is for the tenant to prove— (i) that any destruction or damage was not intentionally done or caused as described in subsection (1)(a); and (ii) that any destruction or damage was not caused by a careless act or omission described in subsection (2).
Section 41 of the Act states: 41 Tenant’s responsibility for actions of others (1) The tenant shall be responsible for anything done or omitted to be done by any person (other than the landlord or any person acting on the landlord’s behalf or with the landlord’s authority) who is in the premises with the tenant’s permission if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant. (2) Where any person (other than the landlord or any person acting on the landlord’s behalf or with the landlord’s authority) intentionally or carelessly damages the premises while the tenant is in the premises, it shall be presumed that the tenant permitted that person to be in the premises unless the tenant proves that he or she took all reasonable steps to prevent that person from entering the premises or (as the case may require) to eject that person from the premises. Analysis
To succeed with a claim for damage the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear.
Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
Under section 41 of the Act, tenants are liable for the actions of people at the premises with their permission.
If the landlord establishes that the damage occurred during the tenancy and is more than fair wear and tear, the tenant must prove, to avoid liability, that they or someone at the property with their permission did not carelessly or intentionally cause or permit the damage.
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.
Tenants are liable for the full 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 at the property for whom they are responsible.
Where the damage is caused carelessly, and occurred after 27 August 2019, 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).
In addressing carelessness, the question is whether the tenant, or person at the property with their permission, exercised a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective, not based on the subjective opinions of the tenant or landlord.
In awarding compensation for damage, the Tribunal must also consider betterment and depreciation. The primary goal of compensation is to return the landlord to the position they would have been in had the tenant not breached their obligations. If compensation claimed would result in the landlord being better off than they were originally, the Tribunal may reduce the award to reflect betterment. In calculating any depreciation, the Tribunal must consider the age and condition of the items concerned at the start of the tenancy and their likely useful lifespan. Tenant’s submissions
[The tenant’s representatives] has filed written submissions on behalf of the tenant. The tenant accepts that the damage occurred during the tenancy and was caused by someone who was at the property with the tenant’s permission, and for whom the tenant is responsible. However, the tenant argues that the damage was not intentional and should, therefore, be covered by the landlord’s insurance.
At paragraph 18 of their submissions the tenant states: “Intent is defined in Guo v Korck [2019] as “Where a person does something or allows a situation to continue knowing damage is a certainty”. The clients’ actions were the involuntary response caused by his disability. At no point did the client intend to cause damage to the Property. The client was suffering from a mental health episode which prevented him from forming intent to damage.”
At paragraph 20 of their submissions, the tenant states, “As such, the damage was caused by an involuntary / accidental action”.
The tenant submits that, where the Tribunal finds the damage to be inadvertent / accidental, the tenant is entitled to immunity under the Property Law Act 2007 (“PLA”). However, the PLA was removed from the Act by the Residential Tenancies Amendment Bill (No 2) 2017. Disputes between parties to a residential tenancy agreement, such as the one between the parties, are no longer subject to the provisions of the PLA. The relevant law concerning liability for damage is set out in section 49A and 49B of the Act. Landlord’s submission
The landlord submits that the damage was more likely than not the result of an intentional act. The landlord submits there is insufficient evidence to establish that the damage was the result of an involuntary act and argues that the damage was more likely than not intentional. Analysis
There are no provisions in the Act obligating the landlord to make a claim against their insurance. If the Tribunal finds that the damage is the result of carelessness, the tenant’s liability is limited by the applicable excess, whether or not the landlord chooses to make a claim.
Involuntariness, or automatism, is typically raised as a defence to criminal offences that require mens rea (intention to do the act or omission constituting the offence). It refers to actions performed by a person who is not in control of their physical movements due to an external or internal factor, rendering the act involuntary and thereby negating mens rea.
An example of involuntariness in a damage claim made under section 49B, may involve a tenant, or other person at a property for whom the tenant is responsible, suffering an epileptic fit or seizure during which damage to property occurs. Although the damage may have occurred during the tenancy and may prima facie be deemed more than fair wear and tear, the damage may be considered the result of an involuntary act, as opposed to one that is intentional or careless.
If the Tribunal is satisfied that the damage occurred during the tenancy, is more than fair wear and tear, and the tenant raises involuntariness / automatism as a defence, the tenant must provide sufficient evidence in support, preferably from a suitably qualified health practitioner. Each case will be determined on its facts.
Attached to the tenant’s submissions is a report from a specialist psychiatrist, dated 11 September 2024. The report has been heavily redacted to the extent it has minimal evidential value.
The author of the report states: “I understand that earlier this year, in around March / April [redacted] had a number of episodes of quite disturbed behaviour, which ultimately culminated in him smashing the car windows of his support workers.”
The report goes onto state: “My overall impression of [redacted] is that he presents with a quite complex mixed picture which encompasses the autistic spectrum and also a number of specific anxiety symptoms. He has demonstrated a decrease in the number of major incidents since the introduction of [redacted], but staff were clear that the intensity of these incidents has risen.”
The landlord submits that the report was not prepared for this hearing, is general, heavily redacted, and does not specifically address the incident concerned. Decision
Having considered the evidence, I am satisfied that the damage occurred during the tenancy and that it is more than fair wear and tear.
I am not satisfied the report produced supports the tenant’s submission that the occupants’ actions were involuntary.
The damage depicted in the photographs occurred in a single incident or episode.
The damage to the windows in the lounge is significant and is more consistent with an intentional act. In my opinion the damage claimed is likely the result of deregulated but intentional behaviour, as opposed to carelessness.
I am satisfied that the tenant is liable. Compensation
The tenant’s liability is subject to betterment and depreciation.
The landlord states that four kitchen tiles were impact damaged. These could not be repaired or individually replaced, so the entire floor was replaced. The tiles were installed in 2013. Tiles in residential rental properties have an estimated useful lifespan of approximately 25 years. The tiles were approximately halfway through their useful lifespan. Based on the inspection reports from 01 September 2023, and 24 November 2023, the property appears to exhibit signs of general fair wear and tear that is commensurate with its age. I therefore deduct 25% for betterment and award the landlord $3,581.26.
The cover to the heat pump was able to be replaced, and the bench top repaired. I am not satisfied that there has been any betterment. The amounts claimed to replace the cover and repair the bench top are awarded in full. Costs
Because [The landlord/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression.
Both parties seek 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.
The landlord has been substantially successful and is granted name suppression.
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.
While I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the tenant. Upon careful consideration, I am satisfied that there are sufficient grounds to depart from the principle of open justice and exercise the discretion in section 95A (4). The Tribunal therefore orders suppression of the tenant’s name.

Tenancy Tribunal case 4993728 — Property damage

At a glance

Tenancy Tribunal case 4993728 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions