Published tribunal order
Tenancy Tribunal case 5277245 — Rent arrears at 19A Statesman Street, Henderson, Auckland 0612
Decided 6 Aug 2025 · Published 6 Aug 2025 · Application 5277245
- 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.
- Jo-vanya Marijke Louise Nathan must pay [The landlord/s] $3,528.37 immediately, calculated as shown in table below:
- All other claims are dismissed.
Reasons
- Both parties attended the hearing.
- The landlord applied for rent arrears, payment of power bills, and for the difference between the rent and the reduced new rent from 19 May until 22 September 2025.
- I asked the parties to email me information during a break in the hearing. The registry did not forward the emails to me until later in the afternoon. I have accepted and read the emails sent before 1.00pm because these clarified or confirmed the evidence and submissions at the hearing. The emails sent by the landlord after the end of the hearing have not been considered.
How much is owed for rent?
- This tenancy ended on 18 May 2025 which was the day before the new tenancy agreement commenced. I have seen the new tenancy agreement and I find the tenant owes rent to 18 May 2025.
- The landlord provided rent records which prove the amount owing. The tenant confirmed she last paid rent in March 2025. I have calculated the total rent owed to the end of the tenancy.
Does the tenant have to pay for power?
- The power account was in the owner’s name. There was a check meter at the tenancy premises so the power used by the tenant could be separately accounted for. The landlord submitted there had been a delay in getting power bills to the tenant because the landlord had to wait for the owner to provide the reading from the check meter and then calculate the tenant’s share. Looking at the Tenant Ledger is seems that only one invoice was sent to the tenant and that was towards the end of the seven month tenancy.
- The law provides that tenants are responsible for all outgoings in respect of the premises that are exclusively attributable to their occupation of the premises or to their use of the facilities. Therefore, tenants are only liable for the electricity, gas, telephone and internet they use, and for water charges based on consumption. They are not liable for fixed water charges. See section 39(3) and (4) Residential Tenancies Act 1986 (RTA).
- Where utilities are shared between more than one dwelling or building, the landlord will not be able calculate a tenant’s share of outgoings without a separate water meter or check meter. A tenant is therefore not liable to pay for electricity charges on a meter shared with other premises. See Green v McGregor [2015] NZTT Waitakere 1292.
- Even if the tenant’s electricity usage can be calculated, a strict application of section 39(3) RTA means they will not be liable for fixed line charges, as they are not exclusively attributable to their occupation of the premises.
- Section 11(1) RTA provides that any agreement or arrangement that is inconsistent with any provision of the Act is of no effect. However, the District Court has held that section 85 RTA should be considered when deciding whether to strictly apply s 39(3) and order a full refund of utilities paid by the tenant (Geraghty and Jones v Raui [2019] NZDC 3813). In that case, the District Court directed a rehearing of the original order to refund $6,432.48. At the rehearing the tenant confirmed she was not seeking a full refund of her electricity payments, and the Tribunal found that a strict application of s 39(3) would produce an unfair and unjust result.
- In relation to water charges, the District Court held in Woollams v Simpson (DC Auckland CIV-2005-004-1583, 16 March 2006), that there was an implied term in the tenancy agreement that the landlord would provide water accounts at regular intervals, and within a reasonable time, to enable payment to be made. The Court determined that, because the landlord had failed to do so, the tenant was only required to pay the last two accounts, which covered a period of just over four months.
- I am not persuaded I should allow the claim for power. The landlord agreed in the hearing that she apportioned the fixed charges to both the owner and the tenant, which she is not able to do because of section 39(3) RTA. There is no way I could check the calculations because I was not provided with copies of the original bills during the hearing. Given the timing of the invoice it seems likely to me the landlord only invoiced the tenant because the tenancy was ending, and the landlord had money from the bond refund she could use to pay for the power usage.
- The tenant did not receive a copy of the original bills so she could not check the calculations during the tenancy or have the opportunity to question any large bills. I find that power bills are analogous to water bills in this context because there is a disadvantage to the tenant if the power bills were not passed on every month, or when they were received by the owner. I cannot apply section 85 RTA to consider a fair amount because I do not have the relevant information in front of me. The claim for power bills is dismissed. Can the landlord claim the difference in rent to the end of the original fixed term tenancy?
- The landlord has claimed $540 which is calculated as $30 a week from 19 May, when the new tenancy started, to 22 September, which is when the original fixed term tenancy was to end. This is because the landlord had to reduce the rent by $30 a week to get a new tenancy agreement signed. The owner wrote a letter to the Tribunal in support of the claim, expressing concern at the financial cost of changing tenants. I have considered the emails and documents provided by the parties. The email sent by the landlord on 15 May 2025 is the first time a reduced rent is mentioned. The tenant had been advised about the need to pay the costs of advertising etc and the requirement to pay rent until a new tenant was found, but I cannot see any mention of the possibility of being responsible for the difference in rent. Section 50(1)(d) RTA provides for tenancies to end by consent, which is what happened here. I find the landlord cannot agree to end the tenancy and also hold the tenant responsible because the new rent was less than what the tenant paid. This claim is dismissed.
How should the bond be used?
- The bond was refunded to the landlord in April 2025. It seems the tenant agreed to pay the upfront fee for ending the fixed term tenancy and also to pay for the water rates.
- I have applied the money allocated to the power bill to offset the rent arrears. Other orders
- Because the landlord has substantially succeeded with the claim I have reimbursed the filing fee.
- The landlord’s application for suppression is allowed because the landlord is the most successful party. The tenant’s name will be published because there is public interest when tenants owe money at the end of a tenancy. See section 95A RTA.