What was Tenancy Tribunal case 5012308 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 5012308?

Compensation: $379.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5012308?

The dispute type was not classified.

Where can I read the official tribunal order for case 5012308?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11289940-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5012308 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 5012308?

Compensation: $379.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5012308?

The dispute type was not classified.

Where can I read the official tribunal order for case 5012308?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11289940-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5012308 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5012308 — net $406.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation fixed water charges	$379.00	Compensation fixed water charges
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$406.00
Bond	$3,000.00
Total payable by Landlord to Tenant	$406.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants name and identifying details.
The Bond Centre is to pay the bond of $3,000.00 ([Bond number suppressed]) to [The tenant/s] immediately.
The Landlord shall pay the Tenant $406.00 immediately.

Reasons

Both parties attended the hearing.
The Tenant has applied for compensation, refund of the bond and reimbursement of the filing fee. Refund of the bond
At the hearing the landlord made a claim against the bond for carpet cleaning and replacement of garden lights. However, the landlord did not file an application with Tenancy Services.
Section 22B RTA provides: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the bond is refunded in full to the tenant. This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made. Water and gas
The Tenant has claimed a reimbursement of water and gas fixed charges. The Tenant has provided water invoices and a summary of the amounts paid for gas and water to the Landlord during the tenancy.
The Landlord submitted these fixed fees were not raised by the Tenant during the tenancy. They removed the fixed charges for gas and water prior to invoicing the Tenants.
A tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to their occupation of the premises or to their use of the facilities (see s 39(3) RTA). Therefore, tenants are only liable for the electricity, gas, telephone and internet they use, and for water charges based on consumption (s 39(4) RTA). They are not liable for fixed water charges.
Where utilities are shared between more than one dwelling or building, the landlord will not be able calculate a tenant’s share of outgoings without a separate water meter or check meter. A tenant is therefore not liable to pay for electricity charges on a meter shared with other premises (Green v McGregor [2015] NZTT Waitakere 1292). Even if the tenant’s electricity usage can be calculated, a strict application of s 39(3) RTA means they will not be liable for fixed line charges, as they are not exclusively attributable to their occupation of the premises.
Section 11(1) RTA provides that any agreement or arrangement that is inconsistent with any provision of the Act is of no effect. However, the District Court has held that section 85 RTA should be considered when deciding whether to strictly apply s 39(3) and order a full refund of utilities paid by the tenant (Geraghty and Jones v Raui [2019] NZDC 3813). In that case, the District Court directed a rehearing of the original order to refund $6,432.48. At the rehearing the tenant confirmed she was not seeking a full refund of her electricity payments, and the Tribunal found that a strict application of s 39(3) would produce an unfair and unjust result.
In relation to water charges, the District Court held in Woollams v Simpson (DC Auckland CIV-2005-004-1583, 16 March 2006), that there was an implied term in the tenancy agreement that the landlord would provide water accounts at regular intervals, and within a reasonable time, to enable payment to be made. The Court determined that, because the landlord had failed to do so, the tenant was only required to pay the last two accounts, which covered a period of just over four months.
In considering the evidence, I find the Tenant has provided water invoices and a full summary of Tenant payments which are persuasive of the amounts claimed. These should be reimbursed. The gas fixed charges however, were not supported by gas invoices so this amount is not granted. Appointment of an agent
[The tenant/s] claim the landlord has been overseas for longer than the Act permits without appointing an agent. The Tenants submitted the Landlord relocated to Australia at the start of the tenancy and they were advised that the Landlords parents would conduct the property inspections. There was nothing in writing to stipulate the parents were the appointed Agents and they were given the Landlord’s email and telephone details. Because there was no Agent, the Tenants submitted it was difficult to deal with the bond issues at the end of the tenancy and the Landlord was non-responsive to their issues they raised regarding water, the outside light and leaks in the office. They submitted the parents were also non-responsive.
The Landlord submitted that from the outset when they relocated to Australia, their parents were their Agents and the Tenants could contact the Landlord easily by email or telephone.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.
In considering the evidence, I find that although the Landlord did not officially convey to the Tenants that the Landlords parents were their agents, the parents conducting inspections, attending the property for some repairs and the Tenants communicating their tenancy issues with the parents at times, indicates there was an implied agreement that the parents were the Agents. It should have however been conveyed in writing to avoid any misunderstanding.
The Tenants claim is dismissed.
As the Tenant has been substantially successful with their claims, name suppression is granted to the Tenants and the Landlord shall reimburse the filing fee.
As the Landlord has not been successful, name suppression is refused.

Claims and awards in Tenancy Tribunal application 5012308 — net $406.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation fixed water charges	$379.00	Compensation fixed water charges
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$406.00
Bond	$3,000.00
Total payable by Landlord to Tenant	$406.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants name and identifying details.
The Bond Centre is to pay the bond of $3,000.00 ([Bond number suppressed]) to [The tenant/s] immediately.
The Landlord shall pay the Tenant $406.00 immediately.

Reasons

Both parties attended the hearing.
The Tenant has applied for compensation, refund of the bond and reimbursement of the filing fee. Refund of the bond
At the hearing the landlord made a claim against the bond for carpet cleaning and replacement of garden lights. However, the landlord did not file an application with Tenancy Services.
Section 22B RTA provides: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the bond is refunded in full to the tenant. This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made. Water and gas
The Tenant has claimed a reimbursement of water and gas fixed charges. The Tenant has provided water invoices and a summary of the amounts paid for gas and water to the Landlord during the tenancy.
The Landlord submitted these fixed fees were not raised by the Tenant during the tenancy. They removed the fixed charges for gas and water prior to invoicing the Tenants.
A tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to their occupation of the premises or to their use of the facilities (see s 39(3) RTA). Therefore, tenants are only liable for the electricity, gas, telephone and internet they use, and for water charges based on consumption (s 39(4) RTA). They are not liable for fixed water charges.
Where utilities are shared between more than one dwelling or building, the landlord will not be able calculate a tenant’s share of outgoings without a separate water meter or check meter. A tenant is therefore not liable to pay for electricity charges on a meter shared with other premises (Green v McGregor [2015] NZTT Waitakere 1292). Even if the tenant’s electricity usage can be calculated, a strict application of s 39(3) RTA means they will not be liable for fixed line charges, as they are not exclusively attributable to their occupation of the premises.
Section 11(1) RTA provides that any agreement or arrangement that is inconsistent with any provision of the Act is of no effect. However, the District Court has held that section 85 RTA should be considered when deciding whether to strictly apply s 39(3) and order a full refund of utilities paid by the tenant (Geraghty and Jones v Raui [2019] NZDC 3813). In that case, the District Court directed a rehearing of the original order to refund $6,432.48. At the rehearing the tenant confirmed she was not seeking a full refund of her electricity payments, and the Tribunal found that a strict application of s 39(3) would produce an unfair and unjust result.
In relation to water charges, the District Court held in Woollams v Simpson (DC Auckland CIV-2005-004-1583, 16 March 2006), that there was an implied term in the tenancy agreement that the landlord would provide water accounts at regular intervals, and within a reasonable time, to enable payment to be made. The Court determined that, because the landlord had failed to do so, the tenant was only required to pay the last two accounts, which covered a period of just over four months.
In considering the evidence, I find the Tenant has provided water invoices and a full summary of Tenant payments which are persuasive of the amounts claimed. These should be reimbursed. The gas fixed charges however, were not supported by gas invoices so this amount is not granted. Appointment of an agent
[The tenant/s] claim the landlord has been overseas for longer than the Act permits without appointing an agent. The Tenants submitted the Landlord relocated to Australia at the start of the tenancy and they were advised that the Landlords parents would conduct the property inspections. There was nothing in writing to stipulate the parents were the appointed Agents and they were given the Landlord’s email and telephone details. Because there was no Agent, the Tenants submitted it was difficult to deal with the bond issues at the end of the tenancy and the Landlord was non-responsive to their issues they raised regarding water, the outside light and leaks in the office. They submitted the parents were also non-responsive.
The Landlord submitted that from the outset when they relocated to Australia, their parents were their Agents and the Tenants could contact the Landlord easily by email or telephone.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.
In considering the evidence, I find that although the Landlord did not officially convey to the Tenants that the Landlords parents were their agents, the parents conducting inspections, attending the property for some repairs and the Tenants communicating their tenancy issues with the parents at times, indicates there was an implied agreement that the parents were the Agents. It should have however been conveyed in writing to avoid any misunderstanding.
The Tenants claim is dismissed.
As the Tenant has been substantially successful with their claims, name suppression is granted to the Tenants and the Landlord shall reimburse the filing fee.
As the Landlord has not been successful, name suppression is refused.

Tenancy Tribunal case 5012308 — Tenancy dispute

At a glance

Tenancy Tribunal case 5012308 — Tenancy dispute

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