What was Tenancy Tribunal case 5042090 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 5042090?

Filing Fee: $27.00 awarded to landlord; Property Damage: $1,035.00 awarded to landlord

What type of tenancy dispute was case 5042090?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5042090?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11913389-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5042090 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 5042090?

Filing Fee: $27.00 awarded to landlord; Property Damage: $1,035.00 awarded to landlord

What type of tenancy dispute was case 5042090?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5042090?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11913389-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5042090 — Property damage

Claims and awards in Tenancy Tribunal application 5042090 — net $1,062.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs	$1,035.00	Repairs
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,062.00
Bond	$3,120.00
Total payable by Tenant to Landlord	$1,062.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
Chunjian Wang to pay [the landlord/s] $1,062.00 from the bond, calculated as shown in the table below.
The Bond Centre is to pay the bond of $3,120.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $1,062.00 Chunjian Wang: $2,058.00
The tenant’s application for suppression or her name is dismissed.

Reasons

One of the landlords attended the hearing in person. He confirmed that he had authority to speak for the other landlord. The tenant attended the hearing via telephone. An interpreter attended the hearing in person to assist the Tribunal by interpreting for the tenant.
The landlord confirmed that they are the owners of the premises and that [the property management company] are their former agents.

Is the tenant responsible for the damage to the premises?

Sections 40(2)(a), 41 and 49B of the RTA provides that 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.
Section 49B(3)(a) of the RTA provides that 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).
Section 49B(3)(b) of the RTA provides that 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). Section 49B(3A)(a) of the RTA provides that where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.
Section 49B(1) of the RTA provides that 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.
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 landlord says that the tenant caused damage to the paintwork on approximately 12 walls of the premises. The tenant says that not all the damage to the walls was caused during the tenancy. She says 6 walls were damaged during the tenancy and that this was mainly from removing hooks, pictures, certificates etc from the walls. The tenant said that the walls were damp and that is why the damage occurred. The tenant also said the premises was old and the paint was peeling off the walls.
When the tribunal is called upon to consider claims for damages that have allegedly occurred during the course of a tenancy, it is essential that the tribunal has some evidence as to the state of the premises at the tenancy’s commencement.
It is good practice for landlords to complete a property inspection report with photographs at the commencement of the tenancy. Ideally, this should either be done with the tenant, or the tenant should be given an opportunity to review the report and advise of any issues that are not recorded on the report.
If there are no property inspection reports completed or photographs taken to illustrate the condition of the premises at commencement, it is virtually impossible on the face of competing evidence from the parties, to determine whether the damage that is alleged to have occurred was caused by the tenant or was present at the commencement of the tenancy.
Video footage can be useful. However, the footage should be taken at the commencement of the tenancy. Ideally, the footage should be taken with the tenant, or the tenant should be given a copy of the footage at the start of the tenancy and asked to advise if they consider there are any damage or issues with the premises not recorded on the footage.
In this case, despite having a property manager, a pre-tenancy report was not prepared at the commencement of the tenancy. The only evidence the landlord has of the premises prior to the tenancy commencing is video footage. The landlord says he took the video footage prior to handing over the keys to the agent, which, he says, was approximately one month before the tenancy commenced. The landlord conceded that during that time, the agent had access to the premises and was showing the premises to prospective tenants.
As set out above, the landlord has the burden to prove that the damage occurred during the tenancy. I place little weight on the video footage due to the gap between when it was taken and the fact that others were entering the premises during this time.
That said, the tenant has conceded that 6 walls were damaged during the tenancy. I do not accept that the damage was caused because the walls were damp, and the paint was peeling off them. I find that this damage was careless, not intentional. I also find that the damage to the walls were separate incidents, so the relevant cap is the insurance excess of $400 x 6 = $2400.00.
The landlord has provided an invoice for $2,070.00 (including GST) for repairs to approximately 12 walls. I award half of this sum: $1,035.00 (including GST). The filing fee and suppression:
The landlord has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee and granted the application for suppression of the landlord’s name and identifying details.
During the hearing, the tenant requested that her name be suppressed.
Section 95A of the RTA sets out the circumstances when the Tribunal must or may order suppression. The relevant subsections are set out below: (1) 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. (4) 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 decisions of the Tribunal are published by the Ministry of Justice and available for viewing by the public. The principle of open justice has long been recognised as essential to the rule law. Just should be seen to be done, as stated in R v Liddell [1995] NZLR 538.
The tenant has not been wholly or substantially successful in the proceedings. Therefore, the relevant subsection for me to determine her application for suppression is section 95A(4) of the RTA.
The tenant says she applied for suppression because she may return to New Zealand at some point in the future and is concerned that without suppression the publication of the Order would make it difficult for her to obtain a new tenancy. The tenant says that the application for suppression should be granted because while some damage was caused during the tenancy, it was not intentional.
In order to grant suppression under subjection 95A(4), I need to have regard to the parties’ interests and the public interest. Generally, public interest presumes that proceedings are open, unless the circumstances are exceptional (see Read v Police) HC Tauranga CRI-2011-470-3, 29 September 2011 at [20]).
While I understand the tenant’s concerns, I do not consider that the circumstances are exceptional; there is no intensively private or personal information about the tenant in the Order. In this case, I consider the public interest in open justice outweighs the tenant’s interests.
The tenant’s application for suppression is dismissed.

Claims and awards in Tenancy Tribunal application 5042090 — net $1,062.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs	$1,035.00	Repairs
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,062.00
Bond	$3,120.00
Total payable by Tenant to Landlord	$1,062.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
Chunjian Wang to pay [the landlord/s] $1,062.00 from the bond, calculated as shown in the table below.
The Bond Centre is to pay the bond of $3,120.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $1,062.00 Chunjian Wang: $2,058.00
The tenant’s application for suppression or her name is dismissed.

Reasons

One of the landlords attended the hearing in person. He confirmed that he had authority to speak for the other landlord. The tenant attended the hearing via telephone. An interpreter attended the hearing in person to assist the Tribunal by interpreting for the tenant.
The landlord confirmed that they are the owners of the premises and that [the property management company] are their former agents.

Is the tenant responsible for the damage to the premises?

Sections 40(2)(a), 41 and 49B of the RTA provides that 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.
Section 49B(3)(a) of the RTA provides that 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).
Section 49B(3)(b) of the RTA provides that 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). Section 49B(3A)(a) of the RTA provides that where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.
Section 49B(1) of the RTA provides that 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.
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 landlord says that the tenant caused damage to the paintwork on approximately 12 walls of the premises. The tenant says that not all the damage to the walls was caused during the tenancy. She says 6 walls were damaged during the tenancy and that this was mainly from removing hooks, pictures, certificates etc from the walls. The tenant said that the walls were damp and that is why the damage occurred. The tenant also said the premises was old and the paint was peeling off the walls.
When the tribunal is called upon to consider claims for damages that have allegedly occurred during the course of a tenancy, it is essential that the tribunal has some evidence as to the state of the premises at the tenancy’s commencement.
It is good practice for landlords to complete a property inspection report with photographs at the commencement of the tenancy. Ideally, this should either be done with the tenant, or the tenant should be given an opportunity to review the report and advise of any issues that are not recorded on the report.
If there are no property inspection reports completed or photographs taken to illustrate the condition of the premises at commencement, it is virtually impossible on the face of competing evidence from the parties, to determine whether the damage that is alleged to have occurred was caused by the tenant or was present at the commencement of the tenancy.
Video footage can be useful. However, the footage should be taken at the commencement of the tenancy. Ideally, the footage should be taken with the tenant, or the tenant should be given a copy of the footage at the start of the tenancy and asked to advise if they consider there are any damage or issues with the premises not recorded on the footage.
In this case, despite having a property manager, a pre-tenancy report was not prepared at the commencement of the tenancy. The only evidence the landlord has of the premises prior to the tenancy commencing is video footage. The landlord says he took the video footage prior to handing over the keys to the agent, which, he says, was approximately one month before the tenancy commenced. The landlord conceded that during that time, the agent had access to the premises and was showing the premises to prospective tenants.
As set out above, the landlord has the burden to prove that the damage occurred during the tenancy. I place little weight on the video footage due to the gap between when it was taken and the fact that others were entering the premises during this time.
That said, the tenant has conceded that 6 walls were damaged during the tenancy. I do not accept that the damage was caused because the walls were damp, and the paint was peeling off them. I find that this damage was careless, not intentional. I also find that the damage to the walls were separate incidents, so the relevant cap is the insurance excess of $400 x 6 = $2400.00.
The landlord has provided an invoice for $2,070.00 (including GST) for repairs to approximately 12 walls. I award half of this sum: $1,035.00 (including GST). The filing fee and suppression:
The landlord has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee and granted the application for suppression of the landlord’s name and identifying details.
During the hearing, the tenant requested that her name be suppressed.
Section 95A of the RTA sets out the circumstances when the Tribunal must or may order suppression. The relevant subsections are set out below: (1) 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. (4) 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 decisions of the Tribunal are published by the Ministry of Justice and available for viewing by the public. The principle of open justice has long been recognised as essential to the rule law. Just should be seen to be done, as stated in R v Liddell [1995] NZLR 538.
The tenant has not been wholly or substantially successful in the proceedings. Therefore, the relevant subsection for me to determine her application for suppression is section 95A(4) of the RTA.
The tenant says she applied for suppression because she may return to New Zealand at some point in the future and is concerned that without suppression the publication of the Order would make it difficult for her to obtain a new tenancy. The tenant says that the application for suppression should be granted because while some damage was caused during the tenancy, it was not intentional.
In order to grant suppression under subjection 95A(4), I need to have regard to the parties’ interests and the public interest. Generally, public interest presumes that proceedings are open, unless the circumstances are exceptional (see Read v Police) HC Tauranga CRI-2011-470-3, 29 September 2011 at [20]).
While I understand the tenant’s concerns, I do not consider that the circumstances are exceptional; there is no intensively private or personal information about the tenant in the Order. In this case, I consider the public interest in open justice outweighs the tenant’s interests.
The tenant’s application for suppression is dismissed.

Tenancy Tribunal case 5042090 — Property damage

At a glance

Tenancy Tribunal case 5042090 — Property damage

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