Published tribunal order
Tenancy Tribunal case 5175091 — Property damage
Decided 31 Jul 2025 · Published 31 Jul 2025 · Application 5175091
- Property damage
- Rent arrears
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
- [The landlord/s] are to retain the bond that is connected to this tenancy of $2,600 that has already been paid to them by the Bond Centre in part satisfaction of the sums set out in the table below.
- Jana Slater is to pay [The landlord/s] $77.00 immediately as set out in the table below.
- The tenant’s application is dismissed.
Reasons
- Only the landlord attended the hearing. I am satisfied the tenant has been served and that she has chosen not to attend the hearing.
- The tenant made her own application for the refund of the bond to her (the landlord’s already having the bond in their possession - see below) but then advised the Tribunal she no longer wanted to proceed with this. I became aware of this during the hearing. Rent arrears
- Weekly rent is $650. The tenancy ended on 10 January 2025. The landlord provided rent records which prove the amount owing at the end of the tenancy ($650). This sum is ordered. Damage
- The landlord says that a flood occurred inside at the premises at the end of December 2025. The landlord says that the tenant fell asleep intoxicated in the shower after going to a concert thereby blocking the drain. The landlord says that the shower overflowed and flooded the shower room, bathroom, toilet, part of each of the three bedrooms and part of the lounge.
- The landlord says that they have claimed on their insurance for this event. They say there is an excess of $2,000 and this is supported by insurance documentation and an invoice from [cleaning company] who were engaged by the insurer to initially dry out the premises. The landlord says [cleaning company] lifted the carpet and were engaged in drying the house for 7 days. Photographs and documents provided support a finding that there has been extensive flooding throughout the house.
- The landlord provided evidence that the cost of drying the property alone equalled (or was more than) the cost of the excess. The landlord had to pay [cleaning company] $2000 themselves for the excess.
- The landlord seeks that excess on the basis that this damage is careless.
- The tenant did not attend the hearing but in her own application she cites the shower and a fault with the drainage. She says the issue is accidental.
- The landlord says there is no issue with drainage. The current tenants do not have a problem with it (a written statement to that effect from people said to be the existing tenants was provided) and the landlord also provided evidence of the size of the drainpipe.
- Further, the landlord uses a tenancy management portal “MyRent” in which maintenance issues can be logged and the landlord says this supports the fact that the tenant never reported such an issue during the tenancy. They say this was also not reported by previous tenants over the course of the last 5 years or so.
- Liability for damage that is caused during a tenancy depends upon how and when it was caused. Firstly, the landlord must prove that it happened during the tenancy and that it is more than fair wear and tear.
- Importantly here, once that is established, then it is up to the tenant to prove that they did not intentionally or carelessly cause the damage to avoid liability.
- 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 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.
- 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.
- There is no definition of carelessness in the RTA or higher court decision. However, careless damage is damage that is caused by an inadvertent lack of reasonable care. In Bolton v Stone [1951] AC 850 it was observed that: “Its usual meaning is the lack of care, negligence or lack of forethought... Also 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. 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.”
- In Mercier v Smith Dunedin TT 228/93, 14 December 1993 (upheld in Smith v Mercier DC Dunedin TT 228/93, 10 May 1994) it was noted “was the tenant exercising that degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances?”.
- In Utrust Property Management Ltd vs None [2023] NZTT 4459482, 4509090 it was said to be: “a lack of attention, care, or precaution that an ordinary, careful person would take. It is relevant to ask whether the tenant was negligent in allowing damage to continue after it should have been obvious that it was occurring.” Analysis
- I have no difficulty in finding here that the damage was caused during the tenancy and was not fair wear and tear. The issue is whether the damage was caused accidentally or carelessly.
- The tenant did not attend today so was not here to advance any evidence or make any submission that the incident was anything other than careless in order to avoid liability for the insurance excess sought. The tenant has therefore failed to prove that she is not liable for the loss.
- I agree with the landlord that this is most likely to be careless damage. I consider that the tenant has not taken the standard of care expected of an ordinary person. I accept the landlord’s account of what occurred to cause the damage because I have no reason to doubt that this is what the tenant told the landlord just after the event. Based on the evidence before me, I do not find the tenant’s assertion that there is a drainage problem to be credible. There is insufficient evidence to support this finding. The shower would need to have been on, and overflowing for a significant period for this level of damage to have occurred.
- A reasonable prudent tenant would have exercised more caution to ensure that when showering, water did not overflow causing significant flood damage throughout a property.
- The landlord has proven that they have incurred expenditure of $2,000 on drying the property and lifting the carpet alone.
- 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. However, the landlord has had no benefit by this expenditure and therefore I have not depreciated the excess amount sought here.
- The sum sought and ordered is proven. Bond
- Prior to the applications by the parties being lodged at the Tribunal I heard that the Bond for this tenancy of $2,600 was released to the landlords by the Bond Centre.
- The landlord may retain the whole of the bond payment they have already received of $2,600 – This will partially satisfy the orders made in respect of rent and damage made above. This is reflected in my order. Filing fee and suppression
- The landlord has been wholly successful and so I order reimbursement of the filing fee ($27).
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- The landlord seeks suppression of their identifying details. They have been wholly successful and so I award this (section 95A, RTA).
- The tenant has not been wholly or substantially successful and see no reason to make an order suppressing her details.