What was Tenancy Tribunal case 5283563 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5283563?

Filing Fee: $27.00 awarded to landlord; Balustrade: $300.00 awarded to landlord

What type of tenancy dispute was case 5283563?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5283563?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12307921-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5283563 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5283563?

Filing Fee: $27.00 awarded to landlord; Balustrade: $300.00 awarded to landlord

What type of tenancy dispute was case 5283563?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5283563?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12307921-Tribunal_Order_Redacted.pdf.

Unit/Flat Flat 4, 15 Coates Street, Hamilton East, Hamilton Tenancy Tribunal Case 5283563 — Property damage

Claims and awards in Tenancy Tribunal application 5283563 — net $327.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Balustrade	$300.00	Repairs: Balustrade
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$327.00
Bond	$1,400.00
Total payable by Tenant to Landlord	$327.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
[The tenant/s] to pay Waikato Real Estate Limited As Agent For Cherry Roe Family Trust $327.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,400.00 ([Bond number suppressed]) immediately apportioned as follows: Waikato Real Estate Limited As Agent For Cherry Roe Family Trust: $327.00 [The tenant/s]: $1,073.00
The balance of the claim is dismissed.

Reasons

Both parties attended the phone hearing.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

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.
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.” DAMAGE – RELEVANT LAW
It is a breach of the RTA if a tenant intentionally or carelessly causes damage or permits any other person to damage the premises. 2 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. 3 1 Kaipo v Clarke & McCarthy (DC) TT233/02 2 See s 40 (2)(a) of the RTA. 3 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). 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 Damage from trampoline - $432.49.
The landlord claims compensation for an invoice charged to the tenant for damaging an exterior balustrade with a trampoline.
No photographs were provided in support of the claim.
The tenant agreed he had damaged the balustrade but disputed the amount of the invoice of $403.74. The property manager that appeared for the agent did not see the damage and only found out about the damage and invoice after the repair had been completed.
The tenant agreed to pay $300 for the repair. In the absence of supporting photographs, to allow me to assess the damage and reasonable level of compensation I will award the $300 the tenant has agreed to pay the landlord, which is below the insurance excess of $400.
I consider insufficient evidence has been provided to support an order for the balance of the claim and I dismiss the balance of the claim.

OTHER CLAIMS

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.

Compensation for body corporate invoice - $1,1017.09

Section 16B of the RTA provides that the Body Corporate Rules are deemed to form part of the tenancy agreement, but the landlord has an obligation to ensure that the tenant receives a copy of the Body Corporate Rules. The Tribunal has not been provided with a copy of the Body Corporate Rules. I have no information about whether they were provided to the tenant. However, as I am dismissing the claim for the reasons below, I do not consider this issue crucial to the outcome of this claim.
The landlord has the obligation of proving that the tenant has breached the body corporate rules and what actual loss was suffered as a result of the breach.
The landlord seeks reimbursement of a body corporate invoice for legal fees in relation to a 14-day notice to remedy a breach sent by the body corporates lawyer directly to the tenant, by-passing the property manager.
The letter refers to various alleged breaches by the tenant of the body corporate rules.
The property manager who attended this hearing as agent for the landlord did not have supporting evidence in the way of photographs of the alleged breaches, video evidence or written statements from any witnesses.
One of the alleged breaches is that the tenant was storing belongings in the common area. As noted above, I have not been provided any photographs of the items said to be stored in on the common area.
One of the alleged breaches is that the tenant has used a drum to have a hangi on the common area. The tenant said he did use a BBQ in the common area, and I understand he moved it back to his private space after having a BBQ. No photographs or supporting statements from witnesses were provided to support the claim. I also have some difficulty with the position that using a BBQ could be a breach of the body corporate rules relating to damage or interference with the reasonable use or enjoying of the common property by other owners or occupiers or the insurance provision.
A further claim is that the tenant refused to allow body corporate contractors to access the property. The allegation is unsupported by any witness statements or information about dates and the contractor that attended or information about the notice provided to the tenant.
Because I consider insufficient evidence has been provided in support of the claim for compensation for the tenant’s alleged breaches of the body corporate rules the claim is dismissed FILING FEE - $27
As the landlord has partly succeeded with the claim, I have reimbursed the filing fee.

BOND

The bond is to be distributed by way of the landlord receiving $327 and the balance is to be paid to the tenant.

SUPPRESSION

Section 95A of the RTA relates to suppression orders. The relevant provisions state: (1)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.... ...(4) The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (5) An order under subsection (4) may be made subject to any conditions that the Tribunal considers appropriate.
Both parties sought name suppression.
The tenant has been substantially successful in defending the claim; therefore, name suppression is granted to the tenant.
The landlord has not been wholly or substantially successful with the claim. The public interest in this case outweighs the landlord’s interest and therefore name suppression for the landlord is declined.

Claims and awards in Tenancy Tribunal application 5283563 — net $327.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Balustrade	$300.00	Repairs: Balustrade
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$327.00
Bond	$1,400.00
Total payable by Tenant to Landlord	$327.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
[The tenant/s] to pay Waikato Real Estate Limited As Agent For Cherry Roe Family Trust $327.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,400.00 ([Bond number suppressed]) immediately apportioned as follows: Waikato Real Estate Limited As Agent For Cherry Roe Family Trust: $327.00 [The tenant/s]: $1,073.00
The balance of the claim is dismissed.

Reasons

Both parties attended the phone hearing.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

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.
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.” DAMAGE – RELEVANT LAW
It is a breach of the RTA if a tenant intentionally or carelessly causes damage or permits any other person to damage the premises. 2 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. 3 1 Kaipo v Clarke & McCarthy (DC) TT233/02 2 See s 40 (2)(a) of the RTA. 3 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). 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 Damage from trampoline - $432.49.
The landlord claims compensation for an invoice charged to the tenant for damaging an exterior balustrade with a trampoline.
No photographs were provided in support of the claim.
The tenant agreed he had damaged the balustrade but disputed the amount of the invoice of $403.74. The property manager that appeared for the agent did not see the damage and only found out about the damage and invoice after the repair had been completed.
The tenant agreed to pay $300 for the repair. In the absence of supporting photographs, to allow me to assess the damage and reasonable level of compensation I will award the $300 the tenant has agreed to pay the landlord, which is below the insurance excess of $400.
I consider insufficient evidence has been provided to support an order for the balance of the claim and I dismiss the balance of the claim.

OTHER CLAIMS

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.

Compensation for body corporate invoice - $1,1017.09

Section 16B of the RTA provides that the Body Corporate Rules are deemed to form part of the tenancy agreement, but the landlord has an obligation to ensure that the tenant receives a copy of the Body Corporate Rules. The Tribunal has not been provided with a copy of the Body Corporate Rules. I have no information about whether they were provided to the tenant. However, as I am dismissing the claim for the reasons below, I do not consider this issue crucial to the outcome of this claim.
The landlord has the obligation of proving that the tenant has breached the body corporate rules and what actual loss was suffered as a result of the breach.
The landlord seeks reimbursement of a body corporate invoice for legal fees in relation to a 14-day notice to remedy a breach sent by the body corporates lawyer directly to the tenant, by-passing the property manager.
The letter refers to various alleged breaches by the tenant of the body corporate rules.
The property manager who attended this hearing as agent for the landlord did not have supporting evidence in the way of photographs of the alleged breaches, video evidence or written statements from any witnesses.
One of the alleged breaches is that the tenant was storing belongings in the common area. As noted above, I have not been provided any photographs of the items said to be stored in on the common area.
One of the alleged breaches is that the tenant has used a drum to have a hangi on the common area. The tenant said he did use a BBQ in the common area, and I understand he moved it back to his private space after having a BBQ. No photographs or supporting statements from witnesses were provided to support the claim. I also have some difficulty with the position that using a BBQ could be a breach of the body corporate rules relating to damage or interference with the reasonable use or enjoying of the common property by other owners or occupiers or the insurance provision.
A further claim is that the tenant refused to allow body corporate contractors to access the property. The allegation is unsupported by any witness statements or information about dates and the contractor that attended or information about the notice provided to the tenant.
Because I consider insufficient evidence has been provided in support of the claim for compensation for the tenant’s alleged breaches of the body corporate rules the claim is dismissed FILING FEE - $27
As the landlord has partly succeeded with the claim, I have reimbursed the filing fee.

BOND

The bond is to be distributed by way of the landlord receiving $327 and the balance is to be paid to the tenant.

SUPPRESSION

Section 95A of the RTA relates to suppression orders. The relevant provisions state: (1)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.... ...(4) The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (5) An order under subsection (4) may be made subject to any conditions that the Tribunal considers appropriate.
Both parties sought name suppression.
The tenant has been substantially successful in defending the claim; therefore, name suppression is granted to the tenant.
The landlord has not been wholly or substantially successful with the claim. The public interest in this case outweighs the landlord’s interest and therefore name suppression for the landlord is declined.

Tenancy Tribunal case 5283563 — Property damage at Unit/Flat Flat 4, 15 Coates Street, Hamilton East, Hamilton

At a glance

Tenancy Tribunal case 5283563 — Property damage at Unit/Flat Flat 4, 15 Coates Street, Hamilton East, Hamilton

At a glance

Award balance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

OTHER CLAIMS

BOND

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

OTHER CLAIMS

BOND

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions