What was Tenancy Tribunal case 5027829 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 5027829?

Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5027829?

The dispute type was not classified.

Where can I read the official tribunal order for case 5027829?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11228556-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5027829 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 5027829?

Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5027829?

The dispute type was not classified.

Where can I read the official tribunal order for case 5027829?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11228556-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5027829 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5027829 — net $27.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$27.00
Bond	$2,890.00
Total payable by Landlord to Tenant	$27.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant name and identifying details.
The landlord’s application is dismissed.
Trina Jury must pay [The tenant/s] $27.00 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,890.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing.
The tenancy has ended. The landlord claims $1,200 from the tenants to cover her insurance excess in relation to flood damage caused by the bathroom sink tap. The tenants want their bond back.
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. In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Flood damage – Facts and law
The landlord says that a flood occurred inside at the premises on 31 August 2024. The bathroom tap was left on and it caused damage to the bathroom, laundry, toilet and fourth bedroom. The landlord says the sink was not draining properly so instead of the water being carried away by the main pipe it overflowed the sink. The landlord says the tenant should have told her about the drainage or they should have put a suitable cleaning product down the drain.
The landlord says that she put in an insurance claim for this event. There is an excess of $1,200. This is supported by an email from her insurer. The landlord provided evidence that the cost of drying the property alone in relation to the damage in August 2024 as greater than the excess.
This event occurred after an earlier claim had been accepted by the landlord’s insurer to remedy damage caused by a bath overflowing during this tenancy. At the time the sink overflowed, that remedial work had not yet been done but was scheduled.
The landlord says that the flood damage was caused carelessly and that the tenant is therefore responsible for the landlord’s insurance excess.
The tenants say that the previous event was caused by their young daughter running a bath on their instruction but then not telling them she had done this. On the occasion of the flood that was caused by the sink, the tenants’ three- year old child had gone to the toilet without telling anyone. He had left the tap running because, the tenants have since learnt, that at his pre-school the taps turn off automatically.
The tenants say they had no idea that the sink did not drain fast enough to stop an overflow if the tap was left on. They say that they do not fill the sinks and also only use this sink on a limited basis. They do not leave the taps running when using the sink.
The tenants say that they do not know how long the water was running for – on the one hand they suggested 10 minutes but then suggested that they did not know and so it possibly could have been between 3.30pm and 4pm. Only [Tenant 1] was present at the time. The tenants’ evidence is that they had no reason to know the tap was running, and [Tenant 1] could not hear it from where he was in the property. They say that there is insufficient evidence to establish that there was a blockage to the drain.
Liability for damage that is caused during a tenancy depends upon how and when it was caused.
Firstly, the landlord must prove that it happened during the tenancy and that it is more than fair wear and tear.
Once that is established, then it is up to the tenant to prove that they did not intentionally or carelessly cause the damage to avoid liability. 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.
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 issue of intentional damage is not of relevance to this enquiry. Accidental damage, where there is no tenant liability, is damage that is greater than fair wear and tear but could not have reasonably been prevented.
There is no definition of carelessness in the RTA or higher court decision. Careless damage is damage that is caused by an inadvertent lack of reasonable care. In Bolton v Stone [1951] AC 850 it was observed that: “Its usual meaning is the lack of care, negligence or lack of forethought... Also heedless or thoughtless, and can cover a situation of inadvertent lack of care. The standard of care is the standard of an ordinary careful person. An ordinary careful person is not expected to take precautions against every foreseeable risk, but only against those risks that are reasonably likely to happen.”
In Mercier v Smith Dunedin TT 228/93, 14 December 1993 (upheld in Smith v Mercier DC Dunedin TT 228/93, 10 May 1994) it was noted “was the tenant exercising that degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances?”.
In Utrust Property Management Ltd vs None [2023] NZTT 4459482, 4509090 it was said to be “a lack of attention, care, or precaution that an ordinary, careful person would take. It is relevant to ask whether the tenant was negligent in allowing damage to continue after it should have been obvious that it was occurring.” Analysis
I have no difficulty in finding here that the damage was caused during the tenancy and was not fair wear and tear.
The key issue is whether the damage was caused accidentally or carelessly.
There are two parts to the cause of the flood. The first part is that a pre-school aged child independently went to the toilet, then turned the sink tap on, and left it running. I have no reason to doubt the tenants’ evidence that their young child left the tap on, and that they did not know that the child had gone to the toilet by himself.
The second part is the landlord’s position that the drainage in the sink was not working ideally. I find this to be more likely than not to be the case as this is supported by a video that the landlord provided to the Tribunal, made while treating the sink with a drainage unblocking product. The video shows the sink with the tap on. The sink initially fills up as the tap is run, but then the sink begins to drain and, a short time later, while the tap is running, the water immediately drains away and does not pool in the sink at all.
Given the nature of the problem and the extent of the issue as shown by the landlord’s video and the tenant’s evidence about their use of the sink I am not satisfied that the tenants were aware of the sink’s drainage needing attention. Therefore, I do not consider that the tenant failed to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs (section 40(1)(d), Residential Tenancies Act (RTA)).
I find that the landlord has not breached her obligation to maintain either (section 45, RTA). I consider that this is a defect that would not be readily observable at an inspection.
I accept that, for both parties, the slow drainage in the sink was a latent defect: that is one that could not be discovered by reasonable observation.
I have considered the position very carefully but ultimately I conclude this was an accident. The accident occurred due to the combination of the child and the drainage problem. I do not find that there was a lack of care that an ordinary person would take either in relation to the child or the drainage.
The tenants are therefore not liable for the damage. The landlord’s claim is dismissed. Bond refund
As the landlord’s claim is dismissed and the tenancy has ended the tenants’ bond is refunded. Suppression and filing fee
The tenants have been successful in the return of their bond and therefore I award the tenant reimbursement of their filing fee.
The tenants seek name suppression and I grant this because they have been wholly successful (section 95A, RTA).
The landlord did not seek name suppression and so I do not need to consider that.

Claims and awards in Tenancy Tribunal application 5027829 — net $27.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$27.00
Bond	$2,890.00
Total payable by Landlord to Tenant	$27.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant name and identifying details.
The landlord’s application is dismissed.
Trina Jury must pay [The tenant/s] $27.00 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,890.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing.
The tenancy has ended. The landlord claims $1,200 from the tenants to cover her insurance excess in relation to flood damage caused by the bathroom sink tap. The tenants want their bond back.
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. In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Flood damage – Facts and law
The landlord says that a flood occurred inside at the premises on 31 August 2024. The bathroom tap was left on and it caused damage to the bathroom, laundry, toilet and fourth bedroom. The landlord says the sink was not draining properly so instead of the water being carried away by the main pipe it overflowed the sink. The landlord says the tenant should have told her about the drainage or they should have put a suitable cleaning product down the drain.
The landlord says that she put in an insurance claim for this event. There is an excess of $1,200. This is supported by an email from her insurer. The landlord provided evidence that the cost of drying the property alone in relation to the damage in August 2024 as greater than the excess.
This event occurred after an earlier claim had been accepted by the landlord’s insurer to remedy damage caused by a bath overflowing during this tenancy. At the time the sink overflowed, that remedial work had not yet been done but was scheduled.
The landlord says that the flood damage was caused carelessly and that the tenant is therefore responsible for the landlord’s insurance excess.
The tenants say that the previous event was caused by their young daughter running a bath on their instruction but then not telling them she had done this. On the occasion of the flood that was caused by the sink, the tenants’ three- year old child had gone to the toilet without telling anyone. He had left the tap running because, the tenants have since learnt, that at his pre-school the taps turn off automatically.
The tenants say they had no idea that the sink did not drain fast enough to stop an overflow if the tap was left on. They say that they do not fill the sinks and also only use this sink on a limited basis. They do not leave the taps running when using the sink.
The tenants say that they do not know how long the water was running for – on the one hand they suggested 10 minutes but then suggested that they did not know and so it possibly could have been between 3.30pm and 4pm. Only [Tenant 1] was present at the time. The tenants’ evidence is that they had no reason to know the tap was running, and [Tenant 1] could not hear it from where he was in the property. They say that there is insufficient evidence to establish that there was a blockage to the drain.
Liability for damage that is caused during a tenancy depends upon how and when it was caused.
Firstly, the landlord must prove that it happened during the tenancy and that it is more than fair wear and tear.
Once that is established, then it is up to the tenant to prove that they did not intentionally or carelessly cause the damage to avoid liability. 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.
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 issue of intentional damage is not of relevance to this enquiry. Accidental damage, where there is no tenant liability, is damage that is greater than fair wear and tear but could not have reasonably been prevented.
There is no definition of carelessness in the RTA or higher court decision. Careless damage is damage that is caused by an inadvertent lack of reasonable care. In Bolton v Stone [1951] AC 850 it was observed that: “Its usual meaning is the lack of care, negligence or lack of forethought... Also heedless or thoughtless, and can cover a situation of inadvertent lack of care. The standard of care is the standard of an ordinary careful person. An ordinary careful person is not expected to take precautions against every foreseeable risk, but only against those risks that are reasonably likely to happen.”
In Mercier v Smith Dunedin TT 228/93, 14 December 1993 (upheld in Smith v Mercier DC Dunedin TT 228/93, 10 May 1994) it was noted “was the tenant exercising that degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances?”.
In Utrust Property Management Ltd vs None [2023] NZTT 4459482, 4509090 it was said to be “a lack of attention, care, or precaution that an ordinary, careful person would take. It is relevant to ask whether the tenant was negligent in allowing damage to continue after it should have been obvious that it was occurring.” Analysis
I have no difficulty in finding here that the damage was caused during the tenancy and was not fair wear and tear.
The key issue is whether the damage was caused accidentally or carelessly.
There are two parts to the cause of the flood. The first part is that a pre-school aged child independently went to the toilet, then turned the sink tap on, and left it running. I have no reason to doubt the tenants’ evidence that their young child left the tap on, and that they did not know that the child had gone to the toilet by himself.
The second part is the landlord’s position that the drainage in the sink was not working ideally. I find this to be more likely than not to be the case as this is supported by a video that the landlord provided to the Tribunal, made while treating the sink with a drainage unblocking product. The video shows the sink with the tap on. The sink initially fills up as the tap is run, but then the sink begins to drain and, a short time later, while the tap is running, the water immediately drains away and does not pool in the sink at all.
Given the nature of the problem and the extent of the issue as shown by the landlord’s video and the tenant’s evidence about their use of the sink I am not satisfied that the tenants were aware of the sink’s drainage needing attention. Therefore, I do not consider that the tenant failed to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs (section 40(1)(d), Residential Tenancies Act (RTA)).
I find that the landlord has not breached her obligation to maintain either (section 45, RTA). I consider that this is a defect that would not be readily observable at an inspection.
I accept that, for both parties, the slow drainage in the sink was a latent defect: that is one that could not be discovered by reasonable observation.
I have considered the position very carefully but ultimately I conclude this was an accident. The accident occurred due to the combination of the child and the drainage problem. I do not find that there was a lack of care that an ordinary person would take either in relation to the child or the drainage.
The tenants are therefore not liable for the damage. The landlord’s claim is dismissed. Bond refund
As the landlord’s claim is dismissed and the tenancy has ended the tenants’ bond is refunded. Suppression and filing fee
The tenants have been successful in the return of their bond and therefore I award the tenant reimbursement of their filing fee.
The tenants seek name suppression and I grant this because they have been wholly successful (section 95A, RTA).
The landlord did not seek name suppression and so I do not need to consider that.

Tenancy Tribunal case 5027829 — Tenancy dispute

At a glance

Tenancy Tribunal case 5027829 — 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