What was Tenancy Tribunal case 5109248 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal orders

How much money was awarded in case 5109248?

Compensation: refund of amount excee…: $950.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5109248?

The dispute type was not classified.

Where can I read the official tribunal order for case 5109248?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11633620-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5109248 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal orders

How much money was awarded in case 5109248?

Compensation: refund of amount excee…: $950.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5109248?

The dispute type was not classified.

Where can I read the official tribunal order for case 5109248?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11633620-Tribunal_Order_Redacted.pdf.

Unit/Flat 5, 4A Gower Street, Silverstream, Upper Hutt 5019 Tenancy Tribunal Case 5109248 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5109248 — net $977.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: refund of amount exceeding liability	$950.00	refund of amount exceeding liability
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$977.00
Total payable by Landlord to Tenant	$977.00

Claims and awards in Tenancy Tribunal application 5109248 — net $977.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: refund of amount exceeding liability	$950.00	refund of amount exceeding liability
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$977.00
Total payable by Landlord to Tenant	$977.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The application for a partial rehearing is granted on the papers and with the consent of both the tenant and the landlords.
Abby O'Neill and Robert Graham must pay [The applicant/s] $977.00 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing held remotely on 4 March 2025.
I issued an order on 18 March 2025. The landlords then applied for a rehearing seeking an amendment of the amount of compensation awarded. They had realised that their insurance excess was for a different amount and supplied evidence in support of their request. Both the tenant and the landlords have now consented to a new order being made for the amended compensation.
I agree that this is the fair thing to do and grant a rehearing of this issue on the papers pursuant to section 105 Residential Tenancies Act 1986 (RTA).
This is the new order for the correct amount of compensation. Background
This tenancy ended on 15 April 2024.
The tenant has applied to be refunded $1,500.00 she paid the landlords during the tenancy (at their request) for repairs at the tenancy premises.
The tenant also claims compensation of an amount to be decided by the Tribunal relating to two maintenance issues she says were not fixed during the tenancy: a kitchen cupboard door that did not close properly, and a door to an outside shed that housed electric wiring was not secure.
I said at the end of the hearing that I may allow an opportunity for a second hearing. After fully reviewing all documents on the file and considering these and the evidence from the parties during the hearing, I can make a final decision. I do this considering the requirement of the Tribunal to make decisions in a way most likely to ensure the fair and expeditious (with speed and efficiency) resolution of disputes; section 85 RTA.

What happened?

The tenancy started on 18 July 2022.
In late August 2023, the tenant noticed water (from an unexplained source) on the floor in the toilet room and notified the landlords.
The tenant was overseas on holiday when the landlords and a plumber investigated the issue and concluded the problem had been caused by the tenant’s practice of emptying a baby bath into the shower tray. The shower is located through the wall from the toilet room.
The landlords and tenant communicated by email about what to do. Based on this, the tenant agreed to pay the landlords for remedial repairs to the toilet and shower area so that the work could be completed while she was away. The alternative was waiting for an insurance process and the landlords said there was no guarantee of how long this would take.
The repairs were done (partly by a plumber and partly by the landlords themselves) and, by February 2024, the tenant had paid $1,500.00 to the landlords for the work.
The tenant says she sought advice and a second opinion from another plumber at the time. She does not agree that the damage was caused by her actions and says she is not liable for the cost of the repairs.
The tenant explained that she did not feel comfortable telling the landlords that she disagreed with them about her liability while she was still living in the property because she worried it may affect her tenancy. She has waited until the tenancy ended and made this application in December 2024. Can the tenant make this claim after she has already made an agreement and paid the landlords for the repairs?
The landlords say the tenant chose to resolve the issue by them doing repair work promptly and her paying them for that work. They say she declined the option of them making an insurance claim.
Usually, people are free to come to agreements between themselves. However, the Residential Tenancies Act 1986 includes a general rule that landlords and tenants cannot agree to anything that is inconsistent with the Act and a tenant cannot waive their rights under the Act; see section 11 RTA.
The part of the RTA that states the law on responsibility for damage is written in mandatory terms.
Section 49A RTA says that a tenant “must not” be required to pay for, indemnify, or carry out work to repair any damage to the premises except as described in the Act in section 49B RTA.
It is an unlawful act for a landlord to accept payment from a tenant (or propose or enter into an agreement with them to do so) of an amount that exceeds the tenant’s legal liability; see s49D RTA.
I am satisfied that these sections in the RTA mean that I should consider the tenant’s claim and assess responsibility for the damage in terms of the Act and not in terms of the agreement reached previously between the parties.
I note that the landlords would have a defence to the tenant’s money claim if more than 6 years had passed since the relevant events took place; see The Limitation Act 2010.
In this case, the events took place well within this timeframe.

What is the law on liability for damage during a tenancy?

Section 49B RTA sets out the law on responsibility for damage to tenancy premises.
A landlord must first prove that any 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. 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. If the property is not insured against that damage, the limit is four weeks’ rent. See section 49B(3)(a)(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(4) RTA.

What is the damage and did it occur during the tenancy?

The damage could not be seen until the lino and some gib board had been removed in the toilet room. Photographs taken by the landlords show water damage to part of the floor under the lino, to the pink batts inside the wall, and to part of the gib board wall between the toilet room and bathroom.
The tenant noticed water on the floor in the toilet room about a year after the tenancy started. I am satisfied that the water damage was probably caused by something that happened during the tenancy.

Have the landlords proved that the damage is more than fair wear and tear?

Fair wear and tear is not defined in the RTA but is anything that would happen as a result of normal use of the property.
The landlords say the water damage was caused by the tenant emptying a large- sized baby bath into the shower tray over the previous 12 to 14 months of the tenancy.
The tenant accepts that she did do this (after bathing her young daughter) but says that the shower should be able to handle this. In her view, the cause of the damage is that the shower tray has not been installed correctly and there is insufficient protective silicon between the tray and shower lining.
My decision is that it is not the normal use of a shower to empty a moderately large volume of water into it in one go (such as from a large baby bath). A shower is designed for showering in. A large bathtub, laundry tub or outdoor drain could perhaps be used for this purpose, but not a shower.
If the main cause of the damage is the tenant’s emptying of the baby bath into the shower, then this is more than wear and tear.

Has the tenant proved that she did not carelessly cause the damage?

The tenant must prove that the damage was not caused by her careless act or omission. See s49B(8)(b) RTA.
Carelessness is not defined in the RTA, but its usual meaning is a lack of care or forethought. The standard of care is that of an ordinary careful person who is not expected to take precautions against every foreseeable risk but only against those risks that are reasonably likely to happen. It can include an inadvertent lack of care. 1
Damage must also be reasonably foreseeable as a natural consequence of the act or omission that caused it.
My decision is that it is more probable than not that the water damage to the toilet room was primarily caused by the emptying of the baby bath into the shower tray over a period of about a year. As I say above, this is not the normal, intended use of a shower and I consider it is reasonably foreseeable that repeated and sudden volumes of water that exceed the normal flow from a showerhead may cause water damage behind or around the shower. The tenant has not disproved liability.
My reasons for this decision are:- a. The leak behind the shower was not caused by the shower hose outlet because the plumber resealed this on the first visit on 9 October 2023, yet the tenant reported more water coming through into the toilet room after this date. b. The evidence from the plumber and landlord is that they ran the shower for 15 minutes and could not replicate the water leak but when they experimented with tipping water from the baby bath into the shower tray, this did result in water appearing through the wall onto the toilet floor. c. No more water is reported as coming through the wall after the tenant stopped emptying the baby bath into the shower (after the repairs).
It is possible that there is a contributory cause to the water making its way out of the shower tray into the toilet room next door. The tenant supplied an email from her plumber who inspected the shower after the repairs had been done (in December 2023) in which he says he “suspects” the shower liner has not been siliconed correctly because when he pushed on it, there was movement between the tray and the liner. 1 See another Tribunal decision where the tenant was cooking with oil which overheated and set off the fire sprinklers causing water damage to the tenancy premises. The tenant had cooked this way on many occasions but it was decided that it was reasonable to expect her to ensure that her cooking did not cause excess smoke and activate the sprinkler system. Landlord v Tenant [2021] NZTT 4298321.
The tenant also mentioned this as a possibility in one of her early emails with the landlords. She said then that the (landlord’s) plumber had said that, “the bottom outskirt part of the shower was not sealed/finished or installed properly”. 2
However, the evidence in support of this is not strong enough to outweigh the evidence that the main cause of the damage was the emptying of the bath. The tenant’s plumber has a suspicion the silicon may not be correctly installed. A suspicion is not enough.
The landlords reject this as a possible cause or contributing factor, however if two plumbers have mentioned it, they may be wise to have the silicon checked and reinforced (if needed).
The tenant also said that water ingress into the toilet room must have been happening over a longer period than the 14 or 15 months of her tenancy to result in the damage shown in the photographs. There was no expert evidence to support this conclusion. Without this, I have only my assessment which is that the damage is limited to one corner of the floor, part of the adjoining wall and one section of pink batts. On balance, I consider the damage could well relate only to the time of the tenancy.
The tenant is liable to compensate the landlords for the damage.
I now move on to consider the amount of compensation payable. Compensation
The landlords say they do have insurance and have supplied evidence that the excess is $550.00.
The law says that if damage is covered by the insurance, a tenant’s liability is limited to the amount of the excess; s49B(3)(a) RTA.
The landlords say the tenant “declined for us to go through our insurer” because that would have meant a delay in having the repairs done. Their insurance policy requires that remedial work must not begin until an assessor has inspected the damage.
The landlords told the tenant in an email to her about her options that if they contacted their insurer the tenant “may still be liable to pay money to them”.
What the landlords say is not correct.
It is a landlord who must decide whether to make an insurance claim as they hold the policy, and it is the landlord who has the right to seek compensation for the excess from the tenant. 2 Tenant email 25 November 2023 at 6:45am.
An insurer has no right or claim in relation to a tenant’s liability for careless damage; see s49C RTA.
My decision is that the tenant is liable to compensate the landlords the amount of the excess which is $550.00. She has paid $1,500.00 to them so the landlords must refund the tenant $950.00. I have made this order. Maintenance issues – the cupboard and the outside shed door
My findings on these issues are:- a. That the issue with the kitchen cupboard door is minor, the landlord did do an interim repair and that any delay in a full fix does not justify compensation. b. That the landlords should have, and could have, secured the external shed door (for example, by attaching a top bolt). However, I do not award compensation as it is not clear how much of a danger or detriment this was and because the tenant did not pursue the issue during the tenancy. It cannot be fairly raised so long afterwards. Filing fee and suppression of names
The tenant has succeeded in recovering a substantial amount of money that the landlords should not have proposed she pay to them. The landlords must pay the tenant the filing fee.
After weighing the interests of both parties and the public interest, I suppress the tenant’s name but not the landlords. The tenant has been substantially successful in her claim and was inadvertently careless. The landlords have breached the Act by accepting money that exceeded the tenant’s liability under the law.

Tenancy Tribunal case 5109248 — Tenancy dispute at Unit/Flat 5, 4A Gower Street, Silverstream, Upper Hutt 5019

At a glance

Tenancy Tribunal case 5109248 — Tenancy dispute at Unit/Flat 5, 4A Gower Street, Silverstream, Upper Hutt 5019

At a glance

Award balance

Claims & awards

Order

Reasons

What happened?

What is the law on liability for damage during a tenancy?

What is the damage and did it occur during the tenancy?

Have the landlords proved that the damage is more than fair wear and tear?

Has the tenant proved that she did not carelessly cause the damage?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

What happened?

What is the law on liability for damage during a tenancy?

What is the damage and did it occur during the tenancy?

Have the landlords proved that the damage is more than fair wear and tear?

Has the tenant proved that she did not carelessly cause the damage?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions