Published tribunal order
Tenancy Tribunal case 5154091 — Exemplary damages at 8 Tomika Crescent, Papamoa Beach, Papamoa 3118
Decided 3 Jul 2025 · Published 3 Jul 2025 · Application 5154091
Tenant favoured
- Exemplary damages
Order
- Sunset Rentals must pay Lise (Lisa) Jane Denize $307.65 immediately, as calculated in the table below:
- All other claims are dismissed.
Reasons
- Both parties attended the hearing.
- The tenant made an application seeking refund of the bond together with exemplary damages for the landlord’s failure to lodge the bond and interest they say the landlord would have earned in illegally holding the bond.
- The landlord made a cross application for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenancy commenced on 30 January 2018 and ended on 29 March 2024. Tenant’s claims
- The tenant claims the landlord did not lodge the bond with the Bond Centre within the required time, or at all during the tenancy. She seeks exemplary damages and interest.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986 (RTA).
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A RTA.
- The landlord admits that they failed to lodge the bond, however, they say that it was entirely accidental, and they simply forgot to do it. I find they have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
- A landlord is considered to know the law relating to tenancy and so any breach must be considered intentional. There is a public interest in ensuring that bonds are always lodged so that any disputes, such as this one, can utilise a bond held by an independent third party. I consider that it is appropriate to award exemplary damages in the amount of $500.00 to the tenant.
- As I have already awarded exemplary damages for this breach, the claim for interest is dismissed. Landlord’s claims Water rates and rent
- The landlord provided water rates invoices which prove the amount owing of $125.95 at the end of the tenancy.
- However, the landlord accepted that during the tenancy they incorrectly charged for fixed water charges, amounting to $183.60. This amount is therefore deducted from the final award.
- There were no rent arrears at the end of the tenancy, however, the tenant had overpaid the rent by $400.00 and this amount is also deducted.
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.
- 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 landlord has claimed for: a. Insurance excess amount for the damage to the walls and carpet in the master bedroom, hallway, dining room and lounge of $1,150.00. b. Bath replacement of $882.57. c. Insurance excess amount for the damaged shower wall lining repair of $1,150.00.
- The landlord says there were several other items that required repair or replacement, such as stained carpet throughout the property, however, they are not claiming for anything further.
- The tenant says that generally during the tenancy she undertook significant maintenance works to the property that went beyond what was usual and required of a tenant. She says she was a good tenant who always paid rent on time, would clean the guttering, prune trees and waterblast the driveway.
- The tenant disputes each of the damages claims and so these are each assessed individually. Walls and carpets in the master bedroom, lounge, and dining
- The landlord has provided photographs of several holes throughout the master bedroom, some of which are incredibly large. There are also photographs of the damage in the dining room wall – being caused by the holes on the other side of the wall (in the master bedroom). In addition, a small cupboard has been installed in the lounge/dining wall.
- An invoice has been provided for the repair of over $5,000.00 for the wall damage and over $8,000.00 for carpet replacement. However, as the landlord has been able to obtain insurance cover, they only seek the excess amount of $1,150.00.
- The tenant says that the damage to the master bedroom walls was allegedly caused by an “outside criminal”, who was an ex-partner of one of her flatmates and was breaching protection orders. She understood that the damage may have been caused when this alleged perpetrator broke into the property and created several holes using a skateboard.
- The landlord says that they did not know about the damage until much later and that it wasn’t reported when it occurred.
- In January 2024 the tenant had requested that the landlord take a trespass order against the alleged perpetrator.
- The police were contacted, however, after investigation they determined that there was insufficient evidence that the damage had been caused by the alleged perpetrator and did not take any further action and the matter was closed. The tenant made various submissions relating to police integrity that have not been considered further.
- I am not satisfied that the tenant has proven that it is more likely than not that the damage was caused by a third party.
- In my view, the landlord has proven that the damage occurred during the tenancy, and the photographs make it clear that it is more than fair wear and tear. The tenant has not proven that she, or the actions of someone else at the property with permission, did not cause the damage.
- If there was sufficient evidence that a third party who was at the premises without permission, including by forced entry, then it is likely that the police would have taken further action. In addition, the inevitable damage to the door/window caused during forced entry would also have been reported at the time. This doesn’t appear to have occurred.
- The amount sought by the landlord is proven. Shower damage
- The landlord claims for damage caused to the shower. Photographs provided show streak marks or staining down the shower walls.
- The total repair costs were $1,816.48. The landlord advised that insurance was not available for this damage, however, they have only sought the insurance excess amount of $1,150.00.
- It is not clear what has caused the damage to the shower and the tenant did not know either. The shower was not new. If the full replacement shower cost had been sought, I would have deducted an amount for depreciation, however, I am satisfied the amount sought of $1,150.00 is reasonable in the circumstances.
- The amount ordered is proved. Bath damage
- The landlord says that the bath had several spots throughout the bath that were unable to be removed. As a result, the landlord had to replace the bath and claim a total amount of $882.57.
- It is not clear was caused the spotting; however, it was suggested by the tenant that it may have been caused by essential oils.
- I am satisfied that the damage to the bath was caused during the tenancy, and the tenant has not proven it was fair wear and tear.
- The bath was not new, and although I accept that the landlord may have chosen a lesser bath to replace the damaged bath with, it was still a new replacement. Accordingly, I have reduced the amount ordered to $550.00 to reflect depreciation.
- The amount ordered is proved. Summary of damage
- The following damage was caused during the tenancy: walls, carpet, shower, and bath damage. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- The amounts ordered are proved.
- I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Other matters
- The landlord also claims for a loss of rent while repairs and maintenance were being undertaken. The total claim was for $2,100.00 amounting to three weeks rent.
- It is unrealistic for landlords to believe that there won’t be time periods between tenants where repair or general maintenance is required to a property, particularly where the tenancy has been for a relatively extended period and maintenance requirements may have accumulated.
- Although as above, I have accepted that damage was caused during the tenancy and needed repair, I do not think it is fair and reasonable for the tenant to additionally cover three weeks rent in these circumstances. Particularly as it is also likely that additional works were carried out that were not the direct result of tenant breaches. This claim is dismissed.
- As both parties have had some level of success, I have not reimbursed the filing fee to either party and these costs will instead be absorbed by both parties.
- Name suppression was not sought by either party. R Harvey-Lane 03 July 2025