What was Tenancy Tribunal case 5140729 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 5140729?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5140729?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5140729?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11712634-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5140729 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 5140729?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5140729?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5140729?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11712634-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5140729 — Property damage

Order

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

Reasons

Both parties attended this video hearing on 8 April 2025.
The tenancy commenced on 15 November 2024 and is current as of the date of this hearing.
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 landlord has applied for compensation for damage to a gate and reimbursement of the filing fee.

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 excess applicable to the policy is $2,000.00. The landlord’s claim is for less than the excess and accordingly the limits in s.49B(3)(a) RTA are not applicable.
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.
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 burden of proof is initially with the landlord. The landlord must prove on the balance of probabilities that; • The damage occurred during the tenancy. • The damage did not occur as a result of fair wear and tear.
Both parties agree that the wooden front gate to the premises was damaged during the tenancy. I need not consider that issue further as it is proven.
I turn now to the issue of fair wear and tear. Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Limited v McKeefry [2019] NZTT 4114629,4169403.
In Nixon V Geal-Otter DC North Shore TT216/94,30 January 1996 the District Court held that a tenant would not be liable for fear wear and tear, meaning damage during ordinary use. “Mere use of the premises will by the law of inevitability produce a deterioration in condition... Where a landlord proves the existence of damage, the landlord should also assume a burden of proof to exclude fair wear and tear. If a tenant raises a plausible explanation that points to fear wear and tear as an explanation, the landlord will fail in the claim.”
The premises are surrounded by a wooden fence. At the front of the premises there is a wooden gate which allows entry to the driveway by vehicle from the street. There are two gates in the fence which allow for entry.
The landlord says there the gate was in good condition at the commencement of the tenancy. There is no reference to any damage to the gate in the pre tenancy report and photos. The landlord said that the gate had been built prior to 2009.
The tenants say that they discovered damage to the gate on 1 December 2024. The photos provided to the Tribunal by both parties showed damage to the left gate as you look from the roadside.
The landlord’s contention was that the gate had been damaged as a result of it being struck or pressed by a vehicle or similar. There was no direct evidence of this having occurred, there being no witnesses to the event. The basis for this proposition was the evidence of three witnesses for the landlord.
The landlord’s first witness was a specialist fencing contractor. The landlord was unable to provide any details as to the contractors qualifications or experience.
The first contractor’s evidence was provided by way of a written statement. The contractor was not present at the hearing to be cross examined.
The usual laws of evidence do not apply to the Tribunal. The Tribunal may accept any form of evidence. The issue of the weight to be applied to any particular evidence will be relevant where a party provides evidence by way of a written statement. As a general comment, less weight will be applied to evidence by way of a written statement, where that person is not available to be cross examined, as distinct to evidence given in person, where the witness is available to be cross examined.
The first contractor said “I went and had a look at your property.... to look at a broken gate. In my opinion it looks like something has either rubbed against it with a vehicle hard or a bumper has hit it as there is a corresponding mark on gate. The post is in good condition (no rot) so weight of the gate hasn't made the post split and gate gudgeon come out.”(sic)
The quote for repairs from the first contractor includes the supply of a 100mm x 100mm x 2.4m post. The quote for repairs by the first contractor was for $391.00.
The second contractor also provided a written report. The second contractor was a licenced building practitioner with 40 years’ experience in the building industry The report states “I have never seen a rusty gate hinge course the gate post to split in this manner. It would only be caused by impact.”(sic”).
The second contractor’s quote also includes the supply of a 100mm x 100mm post.
The landlord provided a report from the insurance assessor. No evidence as to the qualifications of the assessor was provided. The report states “the claim has been assessed, and the damage to the fence is consistent with the claimed description-impact damage from a vehicle.”
The landlord said that the white marks on the damaged gate appeared to be consistent with a vehicle hitting or rubbing against the gate whilst the gates were open.
The tenants’ evidence was that upon returning home on 1 December 2024, they discovered that the gate was damaged. They reported the damage to the landlord the next day. They said that they did not own a white car, which the landlord had suggested may have caused the damage. They accepted that the driveway would not usually be used as a turning bay by passing motorists. They said that the mark on the gate referred to by the landlord looked like a chalk mark and that there was no indentation in the wood beneath the chalk mark. The tenants said that the damage caused would have required a degree of force, if caused by a vehicle.
One of the tenants is a licenced building practitioner with over 15 years of experience. That tenant gave evidence in person and was available to be cross examined, which is of significance in considering the weight to be attached to this evidence. The tenants said that the damage had been caused as a result of fear wear and tear. In support of this the tenants said; • The existing post for the fence had been 100mm x 75mm and that all of the contractors had indicated that they would replace the post with a larger 100mm x 100mm post. • The white mark showing on the fence was similar to a “chalk mark” and that there was no indentation in the fence to suggest that the fence had been subject to impact or pressure from a vehicle. • The tenants said that the existing fence had not been built to code. All of the contractors had indicated in their reports that a larger post was required and that heavy duty ”T hinges” should be used. The previous fence had a “screw belt” going through the post.
In essence, the tenants said that the fence had not been installed correctly, nor had it been maintained and as a result it had deteriorated to the point where the damage occurred.
The tenants reported the damage to the landlord on 2 December 2024.
The landlord’s evidence supported the view that the damage was caused by vehicle impact whilst the gates were open.
The photos provided show a white line on the fence which the landlord said was the point of impact. The photos do not show any indentation beneath the white line, which might have been expected, had the damage being caused by the impact of a vehicle.
I give limited weight to the evidence of the landlord’s first contractor and the insurance assessor as no evidence as to their experience or qualification to provide the opinion evidence has been given.
The landlord’s second contractor was an experienced and qualified builder. In his opinion, the damage could only have been caused by impact.
In contrast, the evidence from the tenant who was similarly experienced was that the damage occurred through faulty installation and a lack of maintenance. I apply greater weight to the evidence of the tenant, as not only was the tenant experienced, but was also available to be cross examined by the landlord. The landlord did not cross examine that tenant at the hearing.
In District Court in Nixon v Geal-Otter ( supra) said, when considering the test for fair wear and tear, that the tenant must raise a “plausible explanation” that points to fair wear and tear as the explanation for the damage. For the reasons set out above, I consider that the tenants have raised a plausible explanation of fair wear and tear as the explanation for the damage. Where a tenant raises a plausible explanation that points to fair wear and tear the landlord will fail in the claim. The landlord’s application is accordingly dismissed.
Both parties applied for name suppression. The landlord has not been wholly or substantially successful in this matter and the landlord’s application for suppression is dismissed. The tenants have been wholly successful and suppression of the tenants’ names and details is ordered.

Tenancy Tribunal case 5140729 — Property damage

At a glance

Tenancy Tribunal case 5140729 — 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