Published tribunal order
Tenancy Tribunal case 5231473 — Property damage
Decided 31 Jul 2025 · Published 31 Jul 2025 · Application 5231473
- Property damage
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 tenants’ and landlords’ name and identifying details.
- [The tenant/s] to pay [The landlord/s] $400.00 from the bond, as calculated in the table below:
- The Bond Centre is to pay the bond of $400.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $400.00 [The tenant/s]: $0.00
- All other claims are dismissed.
Reasons
- Both parties attended the hearing. Background
- The tenancy commenced in May 2022 and ended on 1 April 2025.
- The tenancy address is an older style house, positioned on a rural section.
- The tenants have made an application seeking refund of the bond, as well as claiming exemplary damages. The exemplary damages relate to claims for breach of quiet enjoyment, healthy homes, entering the property without notification and giving a 90-day notice in a retaliatory way.
- The landlords have made a cross application seeking compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- Both parties have provided information in support of their claims, including documentation, submissions at the hearing, and the tenants called a witness. I confirm that all information has been reviewed and considered, even if there is no direct reference to it. Civil burden of proof
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
- As noted by the District Court in Kaipo v Clarke & McCarthy, 1 in practical terms this means that: ... [L]ike 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.
- 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. 1 Kaipo v Clarke & McCarthy, (DC) TT233/02. Landlords’ claims
- I deal first with the claims made by the landlords.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenants must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986 (RTA).
- The landlords claim for repairs to a grass area from a mulch dump of $500.00, remedial works to the garden of $200.00 and removal of rubbish from gardens of $10.00. I do not have invoices or a detailed breakdown on how these amounts are calculated.
- The tenants dispute these claims and say that they left the property immaculate in comparison to how it was when they moved in and had spent considerable time and energy in the gardens. There was some dispute around the tenants’ use of cardboard in the garden, which was used to stop weeds, however the landlords advised that they did not like this as the cardboard used still had cello tape on it.
- There was no pre-tenancy inspection report provided by the landlords. Although I have photographs of pieces of rubbish in the garden, I do not have sufficient comparable evidence to be sure of how the property was at the commencement of a tenancy. Reasonably clean and tidy must also be considered in the context of the property, and here, in the context of a rural property.
- In my view, the landlords have not met the evidential burden, and the claims for grass repairs, garden works and removal of rubbish are dismissed.
Are the tenants 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. 2
- The landlord claims for the invoiced cost of an electrician of $97.75 (relating to a call out invoice) and repair of an external weatherboard from screw hole damage of $20.00.
- I do not have sufficient evidence of the screw hole damage and this claim is dismissed.
- With respect to the electrician charges, the invoice notes that the fridge (which was the tenants) was faulty and was causing the power to trip. It was an older property; however, I am satisfied that this cost was incurred because of the tenants.
- The amount ordered is proved. Tenants’ claims
- The tenants claim for exemplary damages in respect of several different claims. 2 Guo v Korck [2019] NZHC 1541. Law relating to exemplary damages
- Exemplary damages are designed to punish and deter. They are like a fine. In Auckland City Council v Blundell, 3 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
- Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 in the RTA.
- Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest and, e. whether it is just to make the award.
- The maximum levels of exemplary damages are set out in Schedule 1A of the RTA.
- The principle from the District Court decision of Gardiner v Upland Bay Investments Limited, 4 is that if there are multiple breaches of a particular section, then only one set of exemplary damages could be ordered for that breach. Breach of quiet enjoyment
- [The tenant/s] claim the landlords have breached their quiet enjoyment of the property.
- Section 38 of the RTA confirms that the tenants, “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlords “shall not cause or permit any interference with 3 Auckland City Council v Blundell [1986] NZLR 732. 4 Gardiner v Upland Bay Investments Limited, District Court Wellington, CIV 2014-085-13, 27 August 2014. the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The RTA further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
- The term “harassment” is not defined in the RTA. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds, 5 considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3) of the RTA, rather than the definition in the Harassment Act.
- The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
- In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
- From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenants’ quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder, 6 the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
- The tenants claim there has been a breach of quiet enjoyment in the following ways: a. Always feeling as though they were being spied on, including the landlords driving and walking past the house. b. The landlords’ dogs and chickens constantly roaming and defecating on the lawn. c. An incident on 9 February 2025 between the parties (detailed further below). 5 MacDonald v Dodds, CIV-2009-019-1524, District Court Hamilton, 26 February 2010. 6 Whatiura v Shoulder, Palmerston North TT 12/87, 16 March 1987.
- The incident on 9 February 2025 is said to involve one of the tenants returning home to find one of the named landlords pruning a tree on the property (the incident). A discussion ensued about whether the landlords intended to place the house on the market. Allegedly there were accusations made about whether the tenants were sufficiently looking after the property, and the landlord advised the tenants they had 90 days to leave and would be receiving the written notice shortly. They received this shortly after, by text. The landlord subsequently apologised by text for this outburst.
- The tenants say that they had discussions with the other named landlord, who reassured them that they would not be getting an eviction notice. However, a week later the landlords did deliver a notice stating that the tenants had 90-days to vacate the property.
- The tenants described in detail the enormous effect the incident and the 90-day notice had on them (including health impacts). They advised that ultimately, as they no longer had any peace at the property, they gave 14 days written notice. This was accepted by the landlords, and they left the property accordingly.
- The tenants also referred to an earlier 90-day notice they received in December 2023, however the landlords advised that this was actually a 14-day notice with respect to the condition of the gardens and not a 90-day notice.
- More broadly in response to the tenants’ other claims, the landlords submit there is no temporal scale to what is being alleged. They say that although the tenants’ driveway may have been used occasionally (as access to the back section is confusing), they generally respected the tenants’ driveway. They say they didn’t know about the dog defecation (and would have picked this up had they known), and although they accept there may have been stray chickens occasionally, they didn’t know this was a major issue and had always tried to deal with issues immediately.
- Although I accept that the eviction notice(s) and the incident on 9 February 2025 had a significant effect on the tenants, I do not think that this was sufficient to amount to harassment.
- I also consider that I do not have sufficient evidence of the tenants being watched or spied on. I note that landlords are allowed on the property itself without notice (which I detail further below at paragraph 49).
- With respect to the chickens and dogs – although I have no doubt this was annoying, it doesn’t appear to have been raised with the landlord during the tenancy and so the landlord had no opportunity to remedy it. It is also reasonably expected in a rural property setting, particularly in relation to the roaming chickens.
- The claims for exemplary damages for breach of quiet enjoyment are dismissed. Unlawful landlord entry
- The tenants claim that the landlord entered the property without notification.
- Notice is required for the landlord to enter the premises, in accordance with section 48 of the RTA. This does not extend to the exterior of the property, where a landlord is entitled to access the exterior/grounds without giving notice, for maintenance and other reasons.
- The tenant says the landlord entered the property without notification often, and specifically referenced the incident detailed above.
- There is insufficient evidence to suggest that the landlord has entered the premises (the house) without adequate notification.
- Accordingly, this claim is dismissed. Healthy homes standards
- The tenants raised issues around the state of the property, such as the steps into the bedrooms, a light handing off the wall and a loss of garden water for a period. I have been provided with photographs of the steps.
- Section 45 of the RTA requires that a landlord shall: a. Comply with the healthy homes standards. b. Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
- The tenants had a witness give oral evidence on how he had visited the property and considered that there were a range of issues, resulting in health and safety concerns.
- There was no report or evidence provided advising how these issues breach the RTA, the regulations, or any broader provisions.
- The tenants advised that they did not receive a copy of the healthy homes report when requested, however I do not have a copy of this request.
- I also do not have any correspondence where the tenants had raised any of the issues with the landlord, and they had responded inadequately.
- I consider that I do not have sufficient evidence, and the tenants have not met the burden of proof required to prove this claim.
- This claim is dismissed. Retaliatory Notice
- On around 16 February 2025 the landlords gave the tenants a notice ending the tenancy. The tenants claim the notice is retaliatory. I have not been provided with a copy of the notice, and so have assumed this date based on the chronology provided by the tenants. I do not know the date the notice required the tenancy to end, and the tenants gave notice and moved out earlier than required (on 1 April 2025).
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) RTA.
- Section 54(3) requires that the application be made within 28 days after receiving the notice. The application here was made on 10 April 2024.
- The landlords dispute the notice was retaliatory; they needed the property for financial reasons, and let the tenants stay longer than they would have liked which impacted their ability to sell.
- The tenants say that this was the second 90-day notice, and that an earlier one was issued in 2023. I also wasn’t provided with a copy of this, and the landlords dispute that there was any earlier 90-day notice. In any event, the tenants did not move out after the 2023 notice so whatever notice was issued, was not ultimately enforced.
- I am not convinced that the tenants were exercising a right prior to the tenancy ending. There was a dispute, and a heated discussion, however there was no right being exercise under the RTA. In addition, the tenants’ application was filed on 10 April 2024. This is more than 28 days after receiving the notice.
- The tenants’ claim for retaliatory notice is therefore dismissed, as is any resultant claim for exemplary damages. Other matters
- I have not reimbursed the filing fee to either party and consider that these claims should lie where they fall.
- The parties sought name suppression. As both parties have had some successes, I have awarded name suppression to both parties. See section 95A of the RTA. R Harvey-Lane 31 July 2025