Published tribunal order
Tenancy Tribunal case 5301188 — Tenancy dispute at 148A McMillan Street, Tisbury, 11, Invercargill 9877
Decided 3 Nov 2025 · Published 3 Nov 2025 · Application 5301188
- Exemplary damages
- Leaks
- Property damage
Order
- [The landlord/s] must pay [The tenant/s] $1,378.00 immediately, calculated as shown in table below.
- All other claims are dismissed.
Reasons
- Both parties attended the hearing in person.
- These parties came before me regarding this tenancy and a decision was made in relation to the date for the end of the tenancy and other matters. The order is dated 24 June 2025.
- The tenant subsequently filed a second application on the 7 July 2025 seeking reimbursement having accidentally paid a further $300.00 rent, to enforce the previous order and filing fee for this application.
- The enforcement of the order is carried out through a different channel , that being in the District Court, however this application was required because the landlord failed to refund her the over payment. The tenant had not commencement enforcement of the previous order so I shall incorporate the previous order into this one.
- The bond was retained by the landlord so that together with the exemplary damages from the previous order together with the over payment and filing fee of this application is ordered accordingly.
- The current application was heard on 16 th September 2025 in the remote hearing and the adjudicator recorded that the landlord had just filed an in informal cross application for costs for damages. Both applications are before me today for determination.
- In relation to the over payment of rent that is accepted. The landlord failed to repay it because of what he said was damages to the property. I will go into that claim, however for the purposes of clarity the payment was incorrectly paid and needs to be reimbursed. I will therefore include that amount with the previous order.
- The landlord has claimed a significant amount of damages stating that he is required to refloor the bathroom; laundry area because he says the tenant maliciously left the tap running that was connected to a washing machine.
Is the tenant 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 [2019] NZHC 1541.
- Initially the landlord claimed that the tenant had claimed previously that the toilet leaked, and she failed to tell him. There is no evidence of this. She previously claimed tha the toilet seat was loose. He then said that the water was coming from a tap where the tenant had a washing machine installed, at the hearing he claims that the tap was left on deliberately when the tenant left the property.
- The tenant attempted to have the landlord attend the premises for an exit inspection, he refused stating a police man had told him to stay away from her. He was watching from his own premises that adjoins this premises.
- The application was filed just days before the tenant’s other application was heard, at the beginning of September. Further, the landlord failed to make payment as previously ordered.
- The tenant submitted photos of the property when she exited the property.
- The landlord failed to provide any photos of any damage. He submitted a statement from his two girls by way of an affidavit saying they saw the water when they did the inspection after the tenant had left. He provided a letter from a retired carpenter saying what appeared to have happened.
- The landlord claims that a carpenter has looked at it and told him how to dry it, and although the vinyl tiles had not been lifted, he said the whole floor will need to be removed.
- He states his insurance will not cover the costs; he states because he didn’t have regular inspections of the property. The tenancy was short of three months duration.
- The landlrod submitted that the floor had not been previously damaged when the property was significantly destroyed in a fire. He states that the flooring needed to be replaced with a better product due to the actions of the tenant.
- He provided an estimate of costs. No actual costs nor photo evidence to show what had allegedly occurred were submitted. The tenancy came to and end in the first week of July. Hew has another tenant in the property now.
- Having considered the evidence submitted by the landlord I am not satisfied that the landlord has proven the claim on the balance of probabilities. I would have expected photos of the water that either him or his daughters would have taken at the time. I would have expected video footage of the ‘sagging’ floor at least to show what had occurred. The claim is dismissed.
- Further the landlord whilst he says was a deliberate act by the tenant, there is insufficient evidence to say that she did this, especially in light of the request for him to attend the property to do a final inspection.
- Because [The tenant/s] has wholly succeeded with the claim to seek the over payment of the rent I must reimburse the filing fee.