Published tribunal order
Tenancy Tribunal case 5238494 — Tenancy dispute at 2 Grammar School Road, Pakuranga, Auckland 2010
Decided 22 Sept 2025 · Published 22 Sept 2025 · Application 5238494
- Water Rates
Order
- The Bond Centre is to pay the bond of $1,860.00 (5946369-001) immediately apportioned as follows: [The landlord/s]: $207.77 [The tenant/s] and [The tenant/s]: $1,652.23
- [The tenant/s] and [The tenant/s] shall pay [The landlord/s] $207.77 from the bond being standard and wastewater usage charged on 6 November 2024 and 10 December 2024 as calculated in the table below
Reasons
- Both parties attended the hearing. The landlord [The landlord/s] attended the hearing and the tenant [The tenant/s] attended the hearing on behalf of both named tenants. The Tribunal hearing was assisted by a Mandarin interpreter.
- This tenancy began in 2014 and ended on 10 December 2024. The parties
- The tenancy agreement provided names the landlord as RD and A Mosheim and the tenant as [The tenant/s].
- The application filed is seeking payment of water charges and bond refund.
- This matter was first set down for hearing on 7 July 2025. At that hearing the landlord advised that there was a change in landlord as he purchased the property in April 2022.
- [The tenant/s] emailed the Tribunal to advise that he is the tenant in this matter but not named as a party. He advised that his father was the former tenant and he took over the tenancy.
- The Tribunal added [The tenant/s] as a party and the hearing was adjourned for [The tenant/s] to be served and attend the hearing and also for the landlord to file further evidence to prove his claim as follows:
- The Tribunal stated in the adjournment order dated 7 July 2025 at paragraph 7: “7.In order for the Tribunal to consider the claim the following is required: (a)Evidence of who the parties to the tenancy are. If there has been a change in landlord and/or tenant evidence of these changes and when they took place. (b)Evidence that the tenant was billed regularly for water usage and that the tenant was not billed for fixed charges. (c)Evidence of the water charges that are exclusively attributable to the tenant’s use of the premises.”
- The Tribunal directed that any further evidence was to be filed 7 days prior to the hearing.
- No evidence was filed prior to the hearing. The landlord advised he had difficulty uploading the evidence so brought it to the hearing.
- The parties gave verbal evidence that the property was purchased by Mr Wang in April 2022. He visited the home and met [The tenant/s] and introduced himself as the new landlord. He stated that he assumed he was speaking with [The tenant/s].
- [The tenant/s] advised that he is the son of [The tenant/s] and he and his family lived at the home with his father. He stated that prior to the change in landlord he spoke with the previous landlord as his father was moving out but he wished to continue the tenancy. He stated that the previous landlord agreed to this, however, nothing was formalised in writing.
- [The tenant/s] stated that he explained the change in tenant to Mr Wang when he met him.
- Mr Wang provided a copy of a text message he sent stating “Hello Josh, I’m Michael Wang and will be the new owner of the property, please deposit the weekly rent ($640.00)to my account from 08/04/2022. Account details are below...”
- There is no dispute that from then on the rent was paid to Mr Wang.
- The bond continues to be lodged under the name [The tenant/s].
- Having considered the evidence I find that there has been a change of landlord to [The landlord/s] from April 2022. I find that there is an implied agreement that [The tenant/s] be added as a tenant to this tenancy and as such he was added as a party to these proceedings.
- I now turn to consider the landlord’s claims. The Claim
- The landlord seeks payment of water charges of $3470.00 and bond refund.
- The onus is on the landlord to prove the claim for water charges on the balance of probabilities. The Tribunal will carefully consider the verbal evidence of the parties and will also look to any documentary evidence provided to support the claim and will consider this in light of the applicable law. The Law
- Section 39 of The Residential Tenancies Act 1986 provides that the landlord is responsible for all outgoings that apply whether or not the premises is occupied. That is why the landlord is responsible for fixed charges on the water bills. The tenant is responsible for all outgoings in respect of the tenancy premises that are exclusively attributable to the tenant’s occupation of the premises or the tenant’s use of the facilities. This requires a transparent means of quantifying the use of water at the tenancy premises during a tenancy and communicating this to the tenant.
- In his decision in Woollams v Simpson CIV 2005-004-1583 16/3/2006 in the District Court in Auckland, Judge McElrea, observes that there is an implied term in a tenancy agreement that the landlord ought to provide accounts to the tenant at regular intervals so as to enable payment to be made. At paragraph 13 he states “... in my view, the implied term which I read into the Act and into this agreement is necessary in order to make the clause a workable one from a commercial point of view, and in order to decide this matter according to the substantial merits and justice of the case [as provided by s85(2) of the Residential Tenancies Act 1986].”
- At paragraph 9 of his decision Judge McElrea states “For any tenant to be supplied with a bill for three years' water rates at the end of a tenancy is, in my view, quite unconscionable.”
- The District Court considered that the water charges that arose within a reasonable time frame prior to the application to the Tenancy Tribunal were recoverable and ordered the tenant to pay the last two accounts.
- Parties also have a duty to mitigate any loss when there has been a breach by the other party. Section 49 of the RTA states that where there is a breach the other party has a duty to mitigate damage or loss as follows: “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 Evidence
- The landlord claimed that the tenant owes water in the sum of $3740.00
- At the hearing the landlord provided an excel spreadsheet which records water charges from 6 May 2022 to 21 August 2025 together with some payments in 2022 and 2025. There are no totals on the spreadsheet and it does not separate out the charges exclusively attributable to the tenant’s usage as fixed charges and penalty charges are also listed.
- The landlord did not provide copies of the water invoices.
- It is not clear from the evidence filed that the amount sought is proved.
- The landlord sought further time to file more evidence but as this hearing is almost five months after the application was filed and the tenancy ended in December 2024 I consider the landlord has had ample time to provide evidence and the request for further time was declined.
- The tenant stated that letters that he understood to be from the water company came to the address during the tenancy addressed to the landlord’s company name but due to privacy reasons he was not comfortable to open these without permission from the landlord. He stated that he informed the landlord that mail addressed to his company was coming to the premises. He stated that on one occasion he messaged the landlord offering to pay the water direct and be reimbursed for the fixed charges but this was not put in place as when he called the water company to inquire about paying for water they would not speak to him as he was not the account holder.
- The landlord stated that he assumed the tenant was paying for the water and never checked up on this. He stated that he agreed to pay the tenant $20 per month for the fixed charges but never did this as the tenant did not give him an account number. The spreadsheet provided by the landlord records fixed charges of greater than $20 per month.
- It is possible for a landlord to arrange for the water charges to be sent direct to the tenant but then must have an arrangement in place to monitor payment and ensure the fixed charges are deducted and paid by the landlord. The responsibility is on the landlord to set up the arrangement not the tenant.
- In this case the landlord took no active steps during the tenancy to monitor receipt of invoices or put in place an arrangement for payment of the fixed charges. Although there are some intermittent messages between the parties about water which indicate both parties knew the water was not getting paid no arrangement was ever put in place.
- The landlord took no active steps to follow this up and address the water charges until after the tenancy ended and now seeks payment of a lump sum of $3470.
- The landlord knew or ought to have known that the tenant was not paying for water but took no steps to mitigate any loss arising out of this. The Decision
- In line with the District Court decision referred to above I order the tenant to pay the final two water invoices as I consider these arose within a reasonable time frame towards the end of the tenancy. The excel spreadsheet records charges of water and wastewater for the November and December 2024 invoices as $91.21 and $116.56 which totals $207.77 and this amount is ordered accordingly.
- I dismiss the remainder of the landlord claim for the following reasons: (a)The landlord has not provided sufficient evidence to prove the total amount of water owed by the tenant on the balance of probabilities. (b)Even if the landlord could prove the amount owed I am not satisfied that the landlord made arrangements during the tenancy for the tenant to be charged on a regular basis for the actual usage less fixed charges. (c)The landlord has not taken all reasonable steps to mitigate the loss and has instead allowed the situation to continue and then sought a large lump sum payment following the end of the tenancy.
- A split bond refund is ordered accordingly.
- As the landlord has not been wholly or substantially successful with his claim I have not ordered reimbursement of the filing fee and have not ordered suppression of his details. See sections 102(4) and 95A(1) Residential Tenancies Act 1986.