What was the outcome of Tenancy Tribunal case 5228472?

The tribunal order states: Chris Peter Lockyear to pay The Difference Limited As Agent For Derwent

How much money was awarded in case 5228472?

Compensation: $200.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 5228472?

The dispute type was not classified.

Where can I read the official tribunal order for case 5228472?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12180900-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5228472?

The tribunal order states: Chris Peter Lockyear to pay The Difference Limited As Agent For Derwent

How much money was awarded in case 5228472?

Compensation: $200.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 5228472?

The dispute type was not classified.

Where can I read the official tribunal order for case 5228472?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12180900-Tenancy_Tribunal_Order.pdf.

70 Chilcott Road, Henderson, Auckland 0612 Tenancy Tribunal Case 5228472 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5228472 — net $227.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation - removal of lavender	$200.00	Compensation - removal of lavender
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$227.00
Total payable by Tenant to Landlord	$227.00

Claims and awards in Tenancy Tribunal application 5228472 — net $227.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation - removal of lavender	$200.00	Compensation - removal of lavender
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$227.00
Total payable by Tenant to Landlord	$227.00

Order

Chris Peter Lockyear to pay The Difference Limited As Agent For Derwent River Ltd $227.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $227.00 (3332292-008) to The Difference Limited As Agent For Derwent River Ltd immediately.
The Bond Centre is to pay the bond of $2,553.00 (3332292-008) to Chris Peter Lockyear immediately.
The balance of the claim is dismissed.

Reasons

Both parties attended the remote hearing.
The landlord’s property manager appeared as agent for the landlord.
The landlord has applied for: a. compensation, b. payment of the bond (this claim was not included in the application form but submitted by email the morning of the hearing. I address this claim further below), and c. reimbursement of the filing fee following the end of the tenancy.
At the hearing the landlord withdrew the claims in respect of wall damage and other damage claims which were set out in a schedule filed with the application form.
The tenancy commenced on 24 September 2021 and ended on 2 March 2025. Relevant legal considerations
The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities.
The balance of probabilities means more likely than un-likely, 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 likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

Is the tenant responsible for the damage to the premises?

It is a breach of the RTA if a tenant intentionally or carelessly causes damage or permits any other person to damage the premises. 1 1 Sees 40 (2)(a)
Where a landlord is claiming compensation for damage 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. 2
Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. 3
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). 4 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). 5 Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. 6
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. 7 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. 8
In assessing a claim for compensation, I must take into account 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 must take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Griselinia hedge 2 See sections 40(2)(a), 41 and 49B RTA. 3 See Taylor v Webb [1937] 2KB 283 (CA). 4 See section 49B(3)(a) RTA. 5 See section 49B(3)(b) RTA. 6 See section 49B(3A)(a) RTA. 7 See section 49B(1) RTA. 8 See Guo v Korck [2019] NZHC 1541.
The landlord claims that during the tenancy the tenant damaged the griselinia hedges at the rear of the property.
The amount claimed was $1340.08 to replace 14 griselinia plants.
The amount claimed was based on a quote for replacement of 17 plants - $1627.25 including GST.
The landlord provided photographs showing the griselina present at the start of the tenancy but not present at the end.
In respect of the griselinia the tenant says he removed dead foliage and trimmed back any dead parts of the plant. He disputes his actions were intentional (I note the landlord agreed the tenant had not acted intentionally to damage the plants) or careless but rather he says his actions were careful. He denies harshly pruning the griselinia in a way that would cause them to die. The tenant gave evidence he used his best endeavours to support the plants, including laying blood and bone fertilizer.
Generally, a tenant under a tenancy agreement would be expected to weed and mow lawns. It is generally the responsibility of the landlord to carry out bigger maintenance such as pruning of hedges, shrubs, and trees.
The landlord did not undertake any maintenance of the hedges for the duration of the tenancy. The property manager said that this was not requested by the tenant.
I note that the “Additional terms and conditions” of the tenancy agreement records:
Lawns and gardens by tenant – the tenant acknowledges that the tenant is responsible for the maintenance of the gardens, lawns and lawn edges.
I consider this clause reads as though it is requiring (and therefore consenting to) the tenant to undertake maintenance in the garden, which I consider would include minor pruning work. This is an additional clause to the standard clause requiring the tenant to keep the lawns and gardens reasonably clean and tidy (“clause 18 of the Terms and Conditions for Agreement”).
It is my view that if the landlord had maintained the garden, then it is unlikely that the tenant would have carried out any gardening work with respect to the griselinia which I consider he did carefully in accordance with clause 17 of the tenancy agreement.
There is no evidence that the landlord ever objected to the tenant undertaking minor pruning work, which the tenant says he did shortly before inspections.
The tenant referred to communicating with the property manager about the garden work he undertook but the correspondence was not provided in evidence, therefore I do not have information about what was communicated between the parties.
I must also consider section 49 of the RTA which relates to a party’s obligation to mitigate their loss. It says: 49Mitigation of damage or loss Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The landlord says in October 2023 the inspection photographs show the griselinia as tall and thriving. The landlord says the January 2024 inspection photographs show the griselinia had recently been cut severely back, without consent from the landlord.
The landlord did not issue the tenant with a 14-day notice to remedy the alleged breach. Had the landlord raised this issue at this point this would have allowed the tenant to take steps to re plant the griselinia himself. I consider the landlord did not take steps to mitigate their loss.
If I am wrong in my findings above, I also note that crucially, only a quote has been provided.
The Tribunal takes a cautious approach when quotes are provided as the actual cost has not been established and the landlord may not actually pay the amounts quoted for the goods and services.
In this case the quote is an email from an individual (not a gardening or landscaping business) and records: Cut off dead 17 Grisilinias at ground level with sabar saw and plant in- between them with 17 50-60cm high new Grisilinias. Take to tip and dispose of dead foliage. Grisilinias do not tolerate hard pruning at certain times of the year. I believe the pruning was to harsh for the size of thr plant and resulted in to much stress and unfortunately death of the plant. I say this with over 27 years of planting trees for a living 17 Grisilinias 50-60cm high $765.00 Labour $600.00 Rubbish disposal $50.00 SUB TOTAL $1415 GST $212.25 TOTAL 1627.25
There is no evidence as to the cost of each plant (to purchase from a business) or any information about the writer of the email (ie information about the business), to support the quote or the information contained in the email.
For the reasons outlined above, I am not satisfied on the evidence provided that the landlord has proven the claim, and it is therefore dismissed. Lavender
The landlord claimed $1326 based on a quote (on a letterhead from a Gardening business) of $1,990.00 including GST to replant Lavender at the front and back of the premises.
It was accepted by both parties that the tenant is not responsible for replanting lavender at the back of the property which made up 1/3 of the total lavender that was present at the commencement of the tenancy.
In respect of the lavender at the front of the premises the landlord says the tenant is responsible for removing the lavender during the tenancy.
Photographs were provided showing that there were lavender bushes at the front of the property at the commencement of the tenancy which were not present at the end of the tenancy.
The landlord could not advise the age of the lavender.
The tenant says the lavender died off in patches and there was a persistent issue with cats defecating in the garden, which he implied contributed to the lavender dying. The tenant says he did his best to keep the lavender alive.
The tenancy commenced in September 2021. The landlord’s position appears to be that from September 2021 until October 2023, for a period of two years, there was no concerns with the lavender, however at some point between October 2023 and January 2024 the tenant either intentionally or carelessly removed the lavender bush.
I note the photographs show that in October 2023 the lavender plants required maintenance as they were overgrowing.
I consider that it is likely that some of the lavender plants were removed carelessly by the tenant, however I also consider it likely some of the lavender plants died naturally.
I also note that only a quote has been provided, I repeat my comments above that the Tribunal takes a cautious approach when quotes are provided as the actual cost has not been established and the landlord may not actually pay the amounts quoted for the goods and services.
The quote includes the costs to provide “after photos” and does not itemise the separate services. The tenant is not responsible for after photos to be taken for the landlord.
I am therefore not satisfied the landlord has proven its loss to the level claimed.
In taking into account the above factors I consider the tenant should compensate the landlord in part to reflect the tenant’s breach. I consider $200 is reasonable to compensate the landlord. Bond
The landlord did not apply for the bond in the application form.
However, both parties agreed the bond should be distributed in accordance with the outcome of this decision, with all or the balance paid to the tenant.
Accordingly, I make an order for the bond to be distributed as set out in the Order. Filing fee
As the landlord has been partly successful in the claim, I make an order reimbursing the filing fee. Suppression
Neither party sought name suppression.

Tenancy Tribunal case 5228472 — Tenancy dispute at 70 Chilcott Road, Henderson, Auckland 0612

At a glance

Tenancy Tribunal case 5228472 — Tenancy dispute at 70 Chilcott Road, Henderson, Auckland 0612

At a glance

Award balance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions