Published tribunal order
Tenancy Tribunal case 5116888 — Cleanliness at 16A Lynbrooke Avenue, Blockhouse Bay, Auckland 0600
Decided 19 Jun 2025 · Published 19 Jun 2025 · Application 5116888
- Cleanliness
- Property damage
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made and the Tribunal orders suppression of the tenants’ identifying details.
- Barfoot & Thompson Limited As Agent For Deqing Zhu and Deqing Zhu must pay [The tenant/s] $4,469.86 immediately in accordance with the following table: DescriptionAmount Compensation: lack of amenity$4,442.86 Reimbursement of filing fee$27.00 Total $4,469.86
- The bond, number [Bond number suppressed], is to remain at the Bond Centre until the garage damage is rectified.
- [Tenant 1] is to arrange the repair of the garage through her insurance company.
Reasons
- Both parties attended the hearing. [Tenant 1] and [Tenant 2] represented the tenants.
- The owner attended with the assistance of an interpreter. Mr Liu and Mr Gill represented Barfoot & Thompson Limited. It is noted that whilst Barfoot & Thompson Limited managed this tenancy as agent, they no longer do.
- The tenants have applied for compensation for lack of amenity relating to the garage.
- By consent the landlord’s challenge to the bond was also considered although they had not filed a formal application.
- All claims are considered in this decision bearing in mind the evidential burden that lies with the applicant of each claim. The evidential threshold is the balance of probabilities, or what is more likely than not. Background
- The home was built in 2021 and the owners resided in it until this tenancy. This was a fixed term tenancy that commenced on 25 May 2024.
- Almost immediately upon commencement the tenants asked to amend the tenancy to a periodic tenancy due to not being able to use the garage. Agreement was not reached.
- Later in the year [Tenant 1] suffered an injury that affected her mobility and as such the tenants sought to amend the tenancy again. Agreement was again not reached and so on 2 January 2025 the tenants applied to the Tribunal for relief.
- An initial hearing was held on 7 February at which time the landlords agreed to vary the tenancy to one of periodic tenure. Orders of compensation and exemplary damages were also made at that hearing due to agreed breaches of the Residential Tenancies Act 1986 (RTA) by the landlord.
- The tenants subsequently gave notice and the tenancy ended on 31 March 2025.
- The majority of the bond has been returned to the tenants however a portion is held at the Bond Centre pending determination of liability for some damage to the garage.
- I discuss the tenants’ claims first as they were the initial applicants.
Tenant claim - Was there a lack of amenity?
Tenants’ evidence
- It is not disputed that the tenancy was advertised as including a double internal garage, and a floor plan was provided to the tenants prior to signing the tenancy agreement that depicted the garage housing two cars.
- The tenants’ evidence is that on the first day of the tenancy, i.e. when they were moving in, they discovered that the garage was not accessible because of the gradient of the driveway. It is so steep they say that driving into the garage scrapes the front bumper of both their cars, irrespective to the angle the garage is approached. This caused damage to [Tenant 1] car front bumper. They therefore could not use the garage for parking their cars.
- They immediately raised with the landlord their view that the advertising had been misleading as the garage was not able to be utilised. Their evidence is that Mr Liu told them that the owners had just advised him that they hadn’t been able to park in the garage either.
- One of the main reasons the tenants had chosen the property they say was because it had a garage, particularly as two tenants had pre-existing mobility issues. They have two cars between them and having an internally accessed garage was important to them, so they chose a property that had two car internal garaging.
- They consider the lack of garage has impacted their safety and wellbeing because as they have not been able to park in the garage, they have had to walk up and down the steep driveway. One tenant with arthritis had a fall on the drive due to the steep gradient.
- Their evidence is also that they have had to park their vehicles on a shared drive under trees which has resulted in exposure to the elements, requiring more car cleaning and potentially maintenance because this is a coastal environment. They also consider it has an impact on car insurance rates and the safety of their vehicles. They further note they had issues with the neighbours overusing the premium driveway parking space.
- They have provided photos and videos showing two cars scraping the ground with the front bumper when entering, and the resulting damage. They have tried accessing the garage with both their cars and a friend’s in a variety of ways, but none of the three cars could enter the garage without damage.
- They have also filed information from the Auckland City Council regarding the gradient requirements for garage access: Auckland Council Guidance for Concrete Private Driveways and an excerpt from the Transport Chapter of the Auckland Council Unitary Plan. Their view is that the driveway does not conform with these requirements.
- They tried to do their own measurements which were very complicated thereby demonstrating how hard it is for a lay person to estimate the slope when just looking at it. Their measurements they say showed the gradient to be in excess of what is required by the District Plan. In particular there is no gradient transition although the Plan says there must be one in such situations.
- When they came to view the property there were no cars in the garage as they were parked on the drive which is where they were advised to park after the car got damaged. They say they saw the garage set up as a living area. They assumed given the advertisement and the floor plan that if they took the tenancy and the landlords belongings were moved out of the garage, they would be able to park their cars in it.
- The landlord offered to reduce the rent by $50 per week when the concerns were raised, but as they did not consider this adequate recognition of the severity of the problem, the tenants did not accept the offer. They also initially sought to amend the tenancy to a periodic tenancy so they could find another place to live that had an internally accessed garage, but the owners would not agree.
- They therefore decided to give the tenancy a try and see if they could make it work because they considered they had no other option. They say they felt as though they never properly moved into the home because this lack of amenity was always looming over them. They didn’t even unpack everything for this reason.
- Unfortunately, a few months into the tenancy [Tenant 1] suffered an injury and subsequent disability diagnosis. The injury has meant that she was wheelchair bound from September for the remainder of the tenancy. She feels this property has impacted her recovery because of continually injuring herself when trying to access the home.
- Because she could not park in the driveway [Tenant 1] was reliant on others to help her leave the home. The drive is so steep that the wheelchair could not be pushed up it. At one point while navigating the drive she injured her knee which has hampered her recovery further still. Her evidence is that she suffered emotional distress because she felt trapped in the house by pain.
- Because of this the tenants asked the landlord again to change the tenancy to periodic. The owners refused but did say they could end the lease early if they would pay rent until a replacement tenancy was secured. Because the tenants thought they were paying a rent higher than the market rent and properties meeting their needs are limited, they considered this proposition too risky to agree to.
- It was when agreement was not reached at this juncture, and they were in a dire situation that they applied to the Tribunal to reduce their fixed term early.
- Their evidence is also that when the moving truck came to collect their belongings it got stuck because the drive was so steep. It had to be towed out by a neighbour. They submit that this is further evidence of the difficulties people have in assessing the slope when just looking at it as this was an experienced moving truck driver.
- They are concerned that the property is still marketed as having a double garage when the problems with the garage are now well known to the owners. They are clear there is no way two cars could safely and easily be parked in the garage and although they agree that cars with a high wheelbase, but also being low in height, such as Barfoot and Thompson’s Mazda CX5 may be able to park there, the majority of cars cannot.
- They raised this issue with the property managers on a number of occasions in person, by text, phone and email and feel they were met with resistance in the face of genuine distress and injury. It has been difficult for them to bring this claim but they have done so because they genuinely felt they had no other option. They consider they had attempted to settle the matter in a number of ways but in the end when one tenant could not access the home without pain and risk, they felt they had no choice.
- The tenants seek a rent rebate to the effect of a reduction of $100 per week in rent, this amounts to compensation to a total of $4,442.86 over the course of the tenancy. Landlord’s evidence
- The landlords’ view is that the garage can be used. They have provided the following evidence in support of this contention: a. A photo of their car in the garage. b. A video of their car being driven in and out of the garage without scraping. c. Confirmation the house and garage has obtained code of compliance in 2021.
- They say that the tenants viewed the home twice before accepting the lease and did not raise concerns about the garage or parking on those visits.
- Mr Liu recalls contacting the owner about the issue and says he was told they parked outside because they used the garage for entertainment, but didn’t say the garage couldn’t be used.
- He says Barfoot and Thompson weren’t aware of the issue prior to the lease as they assumed the garage could be used given the consented plan depicts double garaging and they were not told anything contrary. Mr Liu does now accept that some cars will not be able to use the garage without scraping and agrees he has not seen two cars in the garage.
- Mr Gill says he parked his SUV in the garage relatively easily after the tenants had moved out. In his view it would be possible to park two midsized SUVs in the garage, but he accepts he hasn’t tried.
- Mr Zhu the owner says he has never parked two cars in the garage as he only has one car. His first car he says was quite big so it did not scrape the ground, but it was relatively difficult to navigate he says because of its size. His second car was smaller and so they had to use a board to mitigate the issue in order to drive into the garage.
- He agrees the drive has a steep slope and says they did raise this with the builder after it was constructed but struggled to deal with the issue because of the language barrier. He says they were reassured as the garage had obtained code of compliance.
- He says they used the space as an entertainment room prior to the tenancy and so had forgotten the parking issues when contracting the tenancy. He relies on the fact that the tenants viewed the property twice before entering into the tenancy agreement. The law and discussion
- S78(1)(g) of the RTA allows the Tribunal to vary or set aside an agreement that was induced by fraud, misrepresentation or mistake.
- The law relating to misrepresentation is now largely codified in New Zealand, in ss.35 and 37 of the Contract and Commercial Law Act 2017, although the common law still also remains relevant. Essentially, as encapsulated in s.35 as far as damages are concerned, if a party to a contract has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made to them by or on behalf of another party to that contract, they shall be entitled to damages from that other party in the same manner and to the same extent as if the representation were a term of the contract that has been broken. The representation however must be one of fact, not opinion. The representation must be false, and it must relate to a matter of present or past fact, not one which relates to the future.
- To summarise, for there to be an actionable misrepresentation the following elements must be present: a. A false representation b. The misrepresentation must have been made by one party to the other. c. The party who made the misrepresentation must have intended for the other party to rely on it. d. The misrepresentation must induce the party to enter the contract.
- The advertisement for the property did offer double parking and the floor plan provided to the tenants confirmed the ability to park two cars in the garage. On the basis of that I find that the property was represented as having two internal car parks.
- I accept the submission that the tenants could not have been expected to understand the parking difficulties merely by observing the driveway gradient. They were entitled to rely on the advertisement and floor plan.
- I do not consider the representation accurate. To assert that a garage can be used for two cars implies it can be used by any or at least most cars. The evidence here establishes that only cars with a high wheelbase such as SUVs can use the garage safely. I am also satisfied that it would be particularly difficult to park two cars in the garage at the same time and if that was achieved it would only be possible with two small cars with high wheelbases and a lot of manoeuvring. This is a small garage at the bottom of a steep slope with no gradient transition.
- Clearly tenants were expected by the landlord to rely on this representation given it is a fundamental feature of a tenancy and was specifically mentioned in the advertisements. I also accept that this was a particular feature of the tenancy that was important to these tenants. They had two cars and two tenants with mobility issues. I am satisfied that the tenants entered the contract on the basis they could park two cars in the garage.
- The tenants have proven in evidence that neither of their cars, nor the car of a friend could access the garage safely. Accordingly, they did not have the amenity of double car garaging that they contracted for.
- This was clearly a pre-existing issue known to the owner given they had had to use a board to park their small car, had difficulties with their big car regarding space and had raised the issue with their builder. I empathise with their difficulties at rectifying the issue with their builder however ultimately the issues were known and regardless the property was advertised for rent including two car parks. It should not have been.
- Accordingly, I find that this tenancy was misrepresented to the tenants. They have suffered a lack of amenity. They have also endured stress and upset, particularly on the part of [Tenant 1] who had difficulty accessing her home after her injury. They have also suffered the inconvenience of having to move homes earlier than intended.
- I accept that the landlord did attempt to address the issue by offering a lower rent and then to reduce the fixed term early. I do not however consider their efforts went far enough in the circumstances.
- I find that the tenants’ claim for a rent rebate of $100 per week for the duration of the tenancy is reasonable and just in the circumstances. 1 This home has 5 bedrooms and 3 ½ bathrooms. The rent was $1,350. I consider the double internal garage a fundamental amenity of this property.
Landlord claim - Are the tenants responsible for the damage to the premises?
- The landlords seek $800 from the bond to rectify damage to the garage they say occurred during the tenancy.
- As here, when damage is alleged, the rules relating to the burden of proof are slightly different to that described above. It is for the landlord to prove that any damage is not fair wear and tear and that it occurred during the tenancy. However, the onus then shifts to the tenant to prove that the damage was not intentionally done or was not caused by a careless act or omission 2 .
- It is accepted that the damage occurred during the tenancy and is more than fair wear and tear although was not caused intentionally.
- What I need to decide therefore is whether it is careless damage.
- Carelessness is not defined in the RTA, but its usual meaning is the lack of care, negligence or lack of forethought. It can also be defined as “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, so it is an objective test. 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. The standard which the Tribunal adopts is the interpretation which a reasonable person would put on the evidence.
- In Guo v Korck [2019] NZHC 154 Justice Walker referred to accidental damage and carelessness as follows: “.. accidental damage generally encompasses damage arising from the insured party’s carelessness or negligence...”.
- In doing so, he has linked accidental damage and carelessness. In Tekoa Trust v Stewart [2017] DCR 628, Judge D G Smith addressed the question of whether the tenant’s actions were “an accidental or careless act” or “an intentional and deliberate act”. The use of “or” reflects that the Judge viewed “careless” and “accidental” acts as interchangeable terms when looking at the difference between these acts and “intentional and deliberate” acts. 1 See section 85 of the RTA 2 See sections 40(2)(a), 41 and 49B Residential Tenancies Act 1986 (RTA)
- I am satisfied that “careless damage” in the RTA encompasses “accidental damage” of this nature. Therefore, in my view [Tenant 1]’s unintentional act comes within the meaning of “careless damage”.
- There are aspects of carelessness that can be attributed to [Tenant 1]’s act. The damage happened when [Tenant 1] was reversing down a driveway that had already caused damage to her car and was extremely difficult to navigate. [Tenant 1] was also physically restricted and in pain. Despite knowing the difficulties, [Tenant 1] reversed down the driveway. That was negligent or careless. When risk is known and not addressed and damage occurs, that is careless damage.
- I take [Tenant 1] submission that she would not have had to do this if the garage was able to be used in the usual way. That issue is addressed elsewhere in this decision and does not affect these findings as she still chose to reverse down the drive.
- Accordingly, [Tenant 1] is liable for the repair. Her insurance company she thinks will deal with the matter and so she will arrange that now. When the garage has been repaired, the remainder of the bond at the Bond Centre should be released back to the tenants.
- If further issues arise with this matter either party can apply for assistance from the Tribunal and should ask that the matter be put before me in an expedited way. Filing fee
- Because [The tenant/s] have wholly succeeded with the claim I must reimburse the filing fee. Suppression orders
- Both parties seek suppression orders. Pursuant to section 95A of the RTA I approve the tenants’ application for suppression as they were successful in their claims.
- I cannot approve the landlords’ application as they were not wholly or substantially successful in their defence to the tenants’ claim. I also consider it in the public interest that the issues with this property be known.