Published tribunal order
Tenancy Tribunal case 5292059 — Cleanliness in Onehunga, Auckland
Decided 20 Nov 2025 · Published 20 Nov 2025 · Application 5292059
- Cleanliness
Party names are redacted in the official published order.
Order
- The application is dismissed.
- The respondents’ request for suppression is granted. Attendance
- Both parties attended the hearing. Background
- This tenancy commenced on 16 November 2024 and concluded on 13 April 2025. The Tenancy Compliance Unit was involved in investigating aspects of this tenancy, and the Tribunal has previously heard other matters pertaining to it.
- The applicant has submitted documentation and information in their application concerning several issues that are not relevant to the matters now before me, and at times during the hearing sought to raise unrelated issues.
- During the hearing, I sought clarification from the applicant as to the precise issues they wished me to determine. They confirmed that their application relates specifically to vacated damages, namely: damage to the paint, dents, and a roof tile at the tenancy premises.
- The evidence filed in the application indicates that this tenancy may not have been managed in accordance with the Residential Tenancies Act. The applicant confirmed to me that the application was brought because of the contentious circumstances surrounding the termination of the tenancy.
- However, my decision must be guided by the law and confined strictly to the matters I have been asked to determine. Ancillary issues raised by the applicant during the hearing are not addressed, and I declined to hear them on the basis that it would be inappropriate.
- My role is to assess the evidence and make a determination on the orders properly sought. What the applicant is asking me to award
- The applicant seeks an award of $2,875. Specifically, the application includes an invoice comprising: sanding and painting a door ($900); sanding and painting an interior wall ($500); supplying and installing a ceiling tile ($500); floor protection ($300); and house cleaning ($300).
- They have submitted photographs showing approximately six areas where the paint has been scratched or slightly dented. Each mark appears to be no more than 1.5 cm in length.
- The applicant submits that these damages were caused by the tenant, noting that the property had been freshly renovated at the commencement of the tenancy. They further tell me that the tenant’s accepted liability for all damage to the tenancy premises. What the respondent told me
- The tenant submits that the landlord’s application is retaliatory in nature. They further state that the alleged damage was pre-existing. The tenant also highlights that no repair work or invoicing was undertaken until two months after the conclusion of the tenancy. On that basis, they argue that, even if the damage were not pre-existing, the landlord is unable to establish that it occurred during the tenancy. Is the damage the tenant’s liability?
- In any claim before the Tribunal, the usual civil law standards apply. The burden of proof rests with the applicant, who must establish their claim on the balance of probabilities, that is, that the matters alleged are more likely than not to have occurred.
- In this case, the applicant has provided several photographs, but these were taken two months after the tenancy had concluded. The respondent denies that the photographs reflect the condition of the premises at the end of the tenancy. Further, the landlord has not produced either a pre-tenancy inspection report or a post-tenancy inspection report specific to this tenancy.
- On the evidence before me, the applicant has not discharged the burden of proof. I am not satisfied, on the balance of probabilities, that the alleged damage was caused by the tenants. For this reason, the application is dismissed.
- For completeness, although I have dismissed the claims as presented, I have nevertheless considered the evidence to determine whether there is any other basis on which the respondent could be found liable.
- During the hearing, the applicant asked me to determine the claim on the basis that the tenants had, at some point, agreed to cover the cost of any damages they caused. My task, however, is to assess liability objectively under the Residential Tenancies Act. Any purported agreement to contract out of the statutory obligations of tenants has no effect. Section 11(3) of the Residential Tenancies Act 1986 expressly provides that any provision contrary to the Act is of no effect.
- Under the Act, tenants are liable for intentional damage pursuant to section 49B(1)(a), and for any damage caused by a careless act or omission pursuant to section 49B(2).
- A third category of damage exists, namely fair wear and tear. Fair wear and tear refers to the ordinary deterioration that can reasonably be expected in a property that has been occupied. A property that is new, or freshly refurbished at the commencement of a tenancy, will inevitably show signs of use over time. Examples include minor marks on walls from everyday movement or small scuffs caused by furniture.
- Such wear is not the liability of the tenant. Where deterioration occurs simply because the property has been lived in, that is properly regarded as fair wear and tear. It is for this very reason that rent is paid, to account for the ordinary use of the premises over the course of the tenancy.
- The damage shown in the applicant’s photographs is properly categorised as fair wear and tear. The marks presented are minor and consistent with ordinary use of the premises. Accordingly, they fall within the third category of damage and do not give rise to tenant liability.
- The applicant also argues that, although the damage appears minor, it cannot be properly repaired without repainting the entire walls. While I accept that such considerations may be relevant where liability is established, the Tribunal can only assess the reasonable cost of repair once it is satisfied that the tenant is legally liable for the damage. As I am not so satisfied, the question of repair costs does not arise.
- For the
Reasons
set out above, the applicant has not discharged the burden of proof. The alleged damages are properly categorised as fair wear and tear and do not give rise to tenant liability. Accordingly, the application is dismissed. Suppression:
- The respondent has requested suppression under s95A(4) because no judgment has been made against her and the application has been dismissed. I accept that the respondent’s interest outweighs any public interest in knowing her details and have accordingly granted suppression.
- I have not received any application from the respondent, but have considered whether or not to grant them suppression. I do not consider that their interests outweigh the public interest in the outcome of this case.