What was Tenancy Tribunal case 5119068 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 5119068?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5119068?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5119068?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11748955-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5119068 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 5119068?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5119068?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5119068?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11748955-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5119068 — Property damage

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The application is dismissed.

Reasons

Both parties attended the video hearing.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).
The background to the claim is relatively simple and can be summarised briefly. A fire occurred at the premises during the tenancy. A decked area was damaged. The landlord seeks compensation from the tenant for the costs of repair.

Is the tenant responsible for the damage to the premises?

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. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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. The landlord is insured. The landlord’s policy of insurance carries an excess of $2,500.00. That is more than the equivalent of four weeks rent and the landlord’s claim is limited to $2,100.00.
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). See section 49B(3)(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(3A)(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. That they did not carelessly or intentionally cause or permit the fire falls on the tenant.
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.
A fire occurred at the premises during the tenancy. The damage did not occur as a result of fair wear and tear. That having been proven to the satisfaction of the Tribunal, the burden of proving that that the fire did not occur as a result of the tenant’s carless or intentional action falls upon the tenant.
The landlord said that the damaged deck was approximately 3m x 3m in size. It had been built prior to 2021. It was a covered deck which adjoins the walls to the house.
The landlord’s evidence consisted of photos taken of areas of the deck after the fire had occurred and the report from the Volunteer Fire Brigade.
The photos were taken by the landlord after the fire had occurred. The photos are of undamaged areas of the deck. The photos show a number of cigarette butts in the gaps between the boards on the deck as well as other debris which may be leaves or grass.
The report from the Volunteer Fire Brigade is dated 25 November 2024. The report states that the incident occurred on 18 November 2024. The fire brigade received a telephone call alerting them to the fire. By the time that the fire brigade had arrived on the scene, the fire had been put out. The report from the fire brigade records that they had been unable to classify the heat source of the fire. The indicated cause of the fire is referred to as being a “failure to clean.” The certainty as to the cause of the fire is referred to as being “Low.” In the comments section to the report, the report writer states “Small fire on deck. Unable to find ignition source except for occupant had just lit fire in fireplace.”
The tenant’s evidence was that she did not drop cigarette butts on the deck and that she was very clean and tidy. She said that on the day of the fire she had left home at approximately 9:30am. She returned at 4:30pm. She said that she had lit a fire in the fireplace. She said that the weather conditions were extremely windy. At approximately 6:30pm she smelled smoke. She went outside to investigate and found that there was a fire on the deck. Her cell phone was flat and so she drove off to call the fire brigade. She then returned to the premises and put the fire out prior to the fire brigade arriving. She said that the only people home that afternoon had been herself and her child. No one else had been at the house as far as she was aware that day.
There is no direct evidence of the cause of the fire. The fire brigade’s report indicates that they had been unable to find an ignition source. The report goes on to refer to the tenant having just lit a fire in the fireplace.
The Tribunal is required to decide if it is more likely than not that the fire occurred as a result of an unextinguished cigarette butt or from a spark or similar from the fireplace being blown onto the deck. The landlord invites the Tribunal to make an inference from there being cigarette butts shown in the photos between some of the boards to the deck and the fire having occurred.
Having considered the evidence proffered by the parties, I consider that it is just as likely, if not more so, that the fire was caused by a spark being blown from the fireplace onto the deck. In those circumstances, the application by the landlord is dismissed.
I make no order for reimbursement of the filing fee.
Both parties applied for name suppression. The tenant has been wholly successful in this application and suppression of the tenant’s name and details is ordered. The landlord has not been wholly or substantially successful in this hearing and the landlord’s application for suppression is dismissed.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The application is dismissed.

Reasons

Both parties attended the video hearing.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).
The background to the claim is relatively simple and can be summarised briefly. A fire occurred at the premises during the tenancy. A decked area was damaged. The landlord seeks compensation from the tenant for the costs of repair.

Is the tenant responsible for the damage to the premises?

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. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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. The landlord is insured. The landlord’s policy of insurance carries an excess of $2,500.00. That is more than the equivalent of four weeks rent and the landlord’s claim is limited to $2,100.00.
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). See section 49B(3)(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(3A)(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. That they did not carelessly or intentionally cause or permit the fire falls on the tenant.
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.
A fire occurred at the premises during the tenancy. The damage did not occur as a result of fair wear and tear. That having been proven to the satisfaction of the Tribunal, the burden of proving that that the fire did not occur as a result of the tenant’s carless or intentional action falls upon the tenant.
The landlord said that the damaged deck was approximately 3m x 3m in size. It had been built prior to 2021. It was a covered deck which adjoins the walls to the house.
The landlord’s evidence consisted of photos taken of areas of the deck after the fire had occurred and the report from the Volunteer Fire Brigade.
The photos were taken by the landlord after the fire had occurred. The photos are of undamaged areas of the deck. The photos show a number of cigarette butts in the gaps between the boards on the deck as well as other debris which may be leaves or grass.
The report from the Volunteer Fire Brigade is dated 25 November 2024. The report states that the incident occurred on 18 November 2024. The fire brigade received a telephone call alerting them to the fire. By the time that the fire brigade had arrived on the scene, the fire had been put out. The report from the fire brigade records that they had been unable to classify the heat source of the fire. The indicated cause of the fire is referred to as being a “failure to clean.” The certainty as to the cause of the fire is referred to as being “Low.” In the comments section to the report, the report writer states “Small fire on deck. Unable to find ignition source except for occupant had just lit fire in fireplace.”
The tenant’s evidence was that she did not drop cigarette butts on the deck and that she was very clean and tidy. She said that on the day of the fire she had left home at approximately 9:30am. She returned at 4:30pm. She said that she had lit a fire in the fireplace. She said that the weather conditions were extremely windy. At approximately 6:30pm she smelled smoke. She went outside to investigate and found that there was a fire on the deck. Her cell phone was flat and so she drove off to call the fire brigade. She then returned to the premises and put the fire out prior to the fire brigade arriving. She said that the only people home that afternoon had been herself and her child. No one else had been at the house as far as she was aware that day.
There is no direct evidence of the cause of the fire. The fire brigade’s report indicates that they had been unable to find an ignition source. The report goes on to refer to the tenant having just lit a fire in the fireplace.
The Tribunal is required to decide if it is more likely than not that the fire occurred as a result of an unextinguished cigarette butt or from a spark or similar from the fireplace being blown onto the deck. The landlord invites the Tribunal to make an inference from there being cigarette butts shown in the photos between some of the boards to the deck and the fire having occurred.
Having considered the evidence proffered by the parties, I consider that it is just as likely, if not more so, that the fire was caused by a spark being blown from the fireplace onto the deck. In those circumstances, the application by the landlord is dismissed.
I make no order for reimbursement of the filing fee.
Both parties applied for name suppression. The tenant has been wholly successful in this application and suppression of the tenant’s name and details is ordered. The landlord has not been wholly or substantially successful in this hearing and the landlord’s application for suppression is dismissed.

Tenancy Tribunal case 5119068 — Property damage

At a glance

Tenancy Tribunal case 5119068 — Property damage

At a glance

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

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