Published tribunal order
Tenancy Tribunal case 5338088 — Exemplary damages at Unit/Flat 3, 39 Peek Street, Ellerslie, Auckland 1051
Published 25 April 2026 · Application 5338088
Tenant favoured
- Exemplary damages
Order
- Jennifer Andrew and Matthew McGinty must pay Ashish Kumar Mishra and Mishra Hernankini $625.00 immediately, calculated as shown in table below:
- The landlord’s application is dismissed.
Reasons
- Both parties attended the rehearing.
- The tenancy started on 13 December 2020 and ended on 5 June 2025.
- The tenants filed an application on 31 August 2025 in respect of alleged landlord breaches of obligations. The tenants also requested the return of their bond.
- The landlord cross applied on 13 February 2026 in respect of vacated compensation.
- The Tribunal released a decision on 17 February 2026 in respect of the tenant’s application. The parties requested a rehearing in respect of the earlier decision.
- There has been a lot of communication between the parties by email. Both have provided documentary evidence and submissions.
- The parties provided a helpful summary in support of their rehearing which I have carefully considered.
- I heard oral evidence from the parties during the rehearing. I have also considered everything placed before the Tribunal even if I do not specifically refer to it.
- The issues the Tribunal must decides are these: a. Did the landlord commit any unlawful acts? If so, Should the Tribunal award the tenant exemplary damages? b. Has the tenant proved a claim for compensation? c. Did the tenants breach their obligations at the end of the tenancy? Relevant law
- Section 38(2) RTA sets out a tenant’s right to quiet enjoyment
- Section 45 RTA sets out a landlord’s responsibilities in respect of maintaining the premises in a reasonable state of repair.
- Section 48 provides for the required notice period for inspections and maintenance.
- Section 85 RTA provides: 85 Manner in which jurisdiction is to be exercised (1)Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. (2)The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. Legal considerations
- With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
- That includes a requirement that the party bringing the claim (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 (DC) TT233/02, 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. Other legal considerations
- The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
- In Birch v Otautahi Community Housing Trust 1 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: a. The nature of the breach; b. The duration of the breach; and c. The effect of the breach on the party.
- Exemplary damages are different. They are designed to punish and to deter. They are like a fine.
- Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA. Those factors are: a. The intention of the person; b. The effect of the unlawful act; c. The interests of the party against whom the unlawful act was committed; and d. The public interest.
- The tenant claims the following: a. Compensation for early move in b. Failure to provide heat pump as agreed c. False accusation of subletting d. Failure to maintain (bathroom door handle, vanity coming off wall, carpet, mould and pest issues) e. Failure to provide required notice period for maintenance
- The parties confirmed during the rehearing that the bond has now been released. The parties also confirmed during the rehearing that the claim for water charges has now been paid via the bond. The amount already paid to the tenant from the bond has been deducted from the total award above.
- The landlord claims cross claims as follows: a. Damage to vanity unit b. Cleaning (mould) Tenant application Claim for two days compensation for early move in
- The tenant maintains that he was forced to move into the unit two days earlier by the landlord. The tenant says that the landlord threatened them that if they did not move 2 days earlier then they would need to cancel the agreement.
- The landlord says that the tenants agreed to the rent being payable on a Friday. She says that she did not force them to move in 2 days earlier.
- The tenancy agreement signed by the parties records a commencement date of 13 December 2020. The tenant claims that the landlord pressured him to commence the tenancy 2 days earlier on 11 December 2020, which resulted in an overlap with his previous tenancy and seeks reimbursement of two days rent.
- The landlord accepts that the tenant took possession on 11 December 2020 but says this occurred by agreement as 13 December 2020 fell on a Sunday. The landlord says bank payments were not processed on that day at the time and commencing the tenancy on the Friday was practical for both parties to allow moving over the weekend.
- It is common ground that the tenant received the keys on 11 December 2020 and began moving into the premises on that date.
- The tenant did not raise any concern about the earlier commencement or seek reimbursement of rent until after the tenancy had ended more than four years later. Analysis
- Under section 13 of the Residential Tenancies Act a tenancy agreement must be in writing and must state among other matters the date on which the tendency is to begin.
- The Act recognises tenancy agreements as contracts and permits variations to be agreed between the parties.
- There is nothing in the Act that prevents a tenancy commencing on a different date from that recorded in the written agreement where in practice the parties mutually agree to an earlier start and the tenant takes position and enjoys the use of the premises.
- Rent is payable in return for the right to occupy the premises and where a tenant has taken possession and used the premises with consent the charging of rent for that period is not, of itself, unlawful.
- The Tribunal’s jurisdiction is to determine disputes in accordance with the Act in the terms of the tenancy agreement having regard to the conduct of the parties. Compensation or reimbursement is not automatic and requires proof that the landlord acted in breach of the Act and that loss resulted.
- In this case while the written agreement records a commencement date of 13 December 2020 the evidence establishes that possession was given on 11 December 2020 and that the tenant began moving into and using the premises from that date with the landlord’s knowledge and consent.
- On the landlords evidence the earlier commencement was proposed for practical reasons related to weekend moving and banking arrangements and the tenant agreed to that arrangement.
- Although the tenant now says he felt he had no alternative there is no evidence that the landlord acted unlawfully, threatened cancellation or otherwise coerced the tenant in a manner which would amount to a breach of the act.
- Importantly the tenant did not raise any objection to the earlier start date, did not seek reimbursement at the time and paid rent while occupying the property. This delay significantly undermines the claim as it is inconsistent with the tenant genuinely regarding the arrangement as improper or imposed.
- The fact that the tenant’s previous tenancy ended on 13 December 2020 does not of itself make the landlord responsible for any overlap in rent. That overlap arose from the tenant agreeing to take possession earlier and obtaining the benefit of occupation during those two days.
- The tenant has not established that the landlord breached the Residential Tenancies Act by providing possession on 11 December 2020.
- Accordingly, the claim for reimbursement of two days rent is declined. Failure to provide a heat pump as agreed
- The tenant claims that the landlord breached the tenancy agreement by failing to install a heat pump as expressly required by a clause in the agreement.
- The tenancy commenced on 13 December 2020 and ended on 5 June 2025. The landlord acknowledges the obligation but asserts that installation of a heat pump was not possible due to the construction and layout of the unit, based on advice from an electrician. However, the landlord has not provided any independent evidence or written report from a qualified professional to substantiate this claim.
- Instead, the landlord installed a wall panel heater as an alternative.
- The obligation to install a heat pump was clear and unqualified in the tenancy agreement, and the landlord has not demonstrated that performance of this obligation was impossible or otherwise excused under the agreement or by law.
- The unilateral decision to install a different form of heating does not discharge the landlord’s contractual obligation, nor has the landlord established that the alternative provided is equivalent to a heat pump.
- Accordingly, I find that the landlord has breached the tenancy agreement by failing to install a heat pump as agreed.
- If the tenancy agreement specifically required the landlord to install a heat pump, that would be a contractual obligation, not a requirement under the Healthy Homes Standards. The tenancy also commenced prior to the Healthy Homes requirements for heating standards and ended before the compliance date for private rentals of 1 July 2025.
- The landlord would then be required to comply with the terms of the tenancy agreement. The Tribunal has jurisdiction to make such award pursuant to section 77(2)(n) of the Act.
- There is no fixed formula for compensation when a landlord fails to install a heat pump as promised in the tenancy agreement. The Tribunal generally considers the actual loss suffered by the tenant as a result of the breach. This is usually assessed by considering: a. The difference in value between what was promised (a heat pump) and what was provided (for example, a wall panel heater). b. Any additional costs the tenant incurred (such as higher electricity bills due to a less efficient heater). c. The loss of amenity or comfort experienced by the tenant and his family over the period the heat pump was not installed.
- I find that a reasonable compensation amount would be a rent refund of 5% for the 6-month period the tenant was without the agreed heat pump.
- The weekly rent was $450.00, and the Tribunal considers a 5% refund is appropriate for the 26 weeks the tenant was without the heat pump. The compensation is as follows: $450 x 5% = $22.50 per week $22.50 x 26 weeks = $585.00
- Accordingly, the claim is established and compensation of $585.00 is ordered. False accusation of sub-letting
- The tenant alleges that the landlord breached their right to quiet enjoyment by falsely accusing him of submitting the premises.
- In support of this claim the tenant relies on an e-mail from the landlord dated 15 October 2021 which included the statement “if you are harbouring another person without our consent then you are in breach of your tenancy obligations”.
- The tenant says that this communication amounted to a threat to his privacy and created an unnecessary and distressing issue regarding the alleged sub-letting, which he says interfered with his quiet enjoyment of the premises.
- The landlord denies making any allegations of submitting. She says the wording of the e-mail was deliberately conditional, using the word ‘if’, and was intended to remind the tenant of his obligations under the tenancy agreement.
- The landlord states that the tenant had previously sought consent to sub-let, which was declined, and that subsequent higher than expected water usage, together with information received from Watercare, reasonably prompted her to raise the issue and seek clarification.
- Section 38(2) of the Residential Tenancies Act provides that a landlord must not interfere with the reasonable peace comfort or privacy of the tenant and the tenants use of the premises.
- A breach of this obligation may amount to an unlawful act where the interference constitutes harassment, for which exemplary damages may be awarded under section 38(3).
- Harassment requires conduct that goes beyond mere communication or inquiry and involves a pattern of behaviour that troubles worries or distress as the tenant and the sustained or unreasonable way.
- The tribunal has consistently held that not every disagreement, inquiry or assertion of rights by a landlord will amount to a breach of quiet enjoyment. The assessment is an objective one considering the nature, context and frequency of the landlord’s conduct.
- Having considered the evidence I do not accept that the landlord’s email of 15 October 2021 amounts to an interference with the tenant’s quiet enjoyment within the meaning of section 38. The email does not contain an unequivocal accusation. It is framed in conditional terms and seeks to address a potential breach in circumstances with the tenant who had previously requested permission to sub-let and where water usage appeared unusually high.
- In that context it was reasonable for the landlord to raise the issue and remind the tenant of the need for consent.
- There is no evidence that the landlord entered the premises, made repeated allegations, contacted third parties or otherwise pursued the issue in a way that could be characterised as persistent, threatening or harassing.
- A single written communication raising a concern and seeking compliance with the tenancy agreement does not amount to an interference with the tenant’s peace, comfort or privacy.
- Landlords are entitled to make reasonable inquiries and to communicate with tenants about potential breaches of the tenancy agreement provided this is done appropriately.
- The tenant has not proved on the balance of probabilities that the landlords conduct amounted to an interference with quiet enjoyment under section 38 of the act.
- Accordingly, the claim has not been established and is dismissed. Failure to maintain (bathroom door handle, vanity coming off wall, carpet, mould and pest issues
- Ashish Kumar Mishra and Mishra Hernankini claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must • provide and maintain the premises in a reasonable state of repair
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986. Bathroom door handle
- The tenant stated that he was locked in the bathroom and had to remove the handle to open the door. He notified the landlord on 6 October 2023.
- The tenant says that the bathroom door handle was not repaired within a satisfactory timeframe. He says it was many months before it was replaced.
- The landlord says that this is not true. She says that it was the tenant who removed the door handle. She says that she sent a locksmith around who replaced it with a brand-new door handle.
- The tenant produced an email dated 28 September 2023 which he sent to the landlord about the bathroom lock. The tenant says that for 6 days the landlord did not accept the concern. The tenant states that he also sent photos and a notice to fix. Bathroom vanity
- On 8 January 2025 the tenant sent the landlord a photograph of the unit in the bathroom coming off the wall and requested repair. The tenant claimed that the landlord failed to maintain the vanity unit.
- The landlord does not accept the claim that she failed to maintain the bathroom vanity. The landlord suspects that the tenant has allowed water to get behind the vanity. She says a plumber turned up who confirmed water damage.
- The tenant says that there is no evidence that he damaged the vanity. He says that there is no evidence that he has damaged anything. Carpet
- The tenant says when he moved into the property parts of the carpet by the entrance door were coming off. He raised this in the beginning and raised it as a concern. The tenant says that it was never fixed. He also raised it at an inspection and says that the landlord ignored it.
- The landlord says that there was a plastic cover over the carpet by the front door. They say that the tenant decided to remove this cover. The landlord says that some of the tacks (nails) needed nailing back down. The landlord says that the carpet started to wear after the tenant removed the protective plastic cover.
- The tenant referred to a photo saying that he removed the plastic cover for safety reasons due to the cover being directly below the panel heater. He also says that it is clear from the photo that the carpet was worn.
- The photo the tenant referred to was taken on or about the end of 2024 or early 2025. The landlord says that there is no safety concern as the heater is raised above the floor with heat which rises from the top of the heater.
- The landlord made no concessions about the state of the carpet during the rehearing. Pest issues
- The tenant claims that the landlord failed to address pest issues at the premises. The landlord stated that at one inspection the tenant’s wife told her that she had covered a pipe as she had seen a mouse.
- The landlord says that she was doing an inspection in the bathroom and asked what was wrapped around the toilet pipe. The tenant’s wife said that she saw a mouse so she wrapped a piece of material around it.
- The landlord never heard anything further regarding issues with mice. The landlord said that she gave advice on how to keep mice away by blocking the pipe with steel wool.
- The tenant says that they are contradicting their statement. He says that the landlord acknowledged there was a problem. Analysis Bathroom door handle
- I accept that there is a factual dispute as to whether the door handle was promptly replaced, and the precise timeframe between notification and repair. However, the tenant has not provided independent evidence demonstrating that the landlord failed to arrange a repair. There is no invoice or locksmith report showing the handle remained unrepaired for an extended period.
- Raising a concern is not sufficient to establish that no repair or replacement occurred or that the landlord failed to meet their obligations under section 45. Bathroom vanity
- The tenant relied on a photograph sent on 8 January 2025 showing the bathroom basin coming away from the wall and asserted that the landlord failed to undertake repairs.
- The landlord responded that the damage was caused by moisture ingress attributable to the tenant’s use of the bathroom.
- The evidence shows that the vanity unit was subject to moisture exposure over time. Mould and water damage were visible in photographs provided by both parties and the vanity was located in a high moisture area without structural separation from the bath.
- On the evidence before me I am not satisfied that the tenant has proven the landlord failed to maintain the basin in breach of section 45. The cause of the damage has not been shown on the balance of probabilities to be the landlords responsibility. Carpet
- The evidence establishes that a protective plastic cover was placed over the carpet at the entrance near the front door.
- Carpet at entrances is particularly prone to wear. The landlord’s response in installing a protective cover was a reasonable step, particularly given the age and character of the premises.
- The tenant has not established that the presence of the cover rendered the premises unsafe, nor has he established that further repairs were required as a matter of reasonable maintenance rather than improvement.
- The evidence does not satisfy me that the landlord failed to maintain the carpet to a reasonable standard. Pest issue
- Isolated sightings of pests do not themselves establish a failure to maintain premises under section 45. The evidence does not demonstrate an ongoing issue, or that the landlord failed to take reasonable steps once the issue was raised.
- The landlord inspected, checked entry points and provided preventative advice. There is no evidence that the tenant made further complaints or that the issue persisted. The tenant has therefore not proven that the landlord failed to meet their obligations in respect of pests.
- I have carefully considered these claims and find that the tenant, on the balance of probabilities has not satisfied me that the landlord failed to maintain the premises in a reasonable state of repair.
- Essentially, the claims advanced by the tenant are simply not supported by the evidence filed with the application.
- Accordingly, the claims in respect of failing to maintain have not been established and are dismissed. Failing to provide proper notice
- Ashish Kumar Mishra and Mishra Hernankini claims the landlord has entered the premises without consent or notice.
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
- The tenant says that the landlord has been deliberately turning up in his absence. He insisted that he be there when they turn up. He says that the landlord ignored his request.
- The tenant says that the landlord stated she would bring a trades person at short notice. The tenant requested the reason why and the landlord refused to inform him, saying that he had no right to question this.
- The tenant says that these visits amount to unlawful entry.
- The landlord says that she had absolutely no interest entering the premises without trades people. The landlord says that the tenant was always complaining about something. She says that the 2 stove elements were not working, and the kitchen and laundry taps, and shower head were dripping.
- The landlord says that the tenant complained that she was not doing anything about it. She says that the tenant then served a notice to repair on the landlord giving her 15 days to sort. The landlord called the plumber who said that there was no issue with taps dripping, although he did advise the landlord to replace the kitchen taps.
- The landlord says that the tenant was complaining that she was taking too long to fix things. She also says that the tenant consented to the plumber and electrician coming in to do the job in respect of the taps and the two stove elements.
- The tenant says that the landlord did not undertake the repairs during the 15- day period. The tenant maintains that the landlord did not serve the proper notice before entering the property. The tenant maintains that when the electrician turned up to fix the stove element there was no notice given.
- The landlord accepts that while notice was not provided she says that when a tenant serves a 15-day notice then that is consent for the landlord to enter and undertake the repairs.
- The landlord says there is no evidence to say that the repairs were not undertaken. The landlord maintains that all visits to the property were prompted by the tenant’s 15-day notices. Analysis
- For repairs and maintenance that are not urgent section 48(2)(d) requires the landlord to give the tenant at least 24 hours’ notice specifying the reason for entry and to enter only at a reasonable time. The notice requirement exists to protect the tenants right to quiet enjoyment and privacy.
- A tenant’s service of a notice to repair does not itself constitute consent for the landlord to enter the premises without notice. Consent must be clear and specific and the statutory notice requirements remain applicable unless one of the express exceptions in section 48 applies.
- Where a landlord enters without consent and without the required notice an unlawful act is committed under section 48(4) rendering the landlord liable for exemplary damages.
- I am satisfied that the landlord attended the premises or arranged for tradespeople to attend without giving proper notice. The tenant stated that the landlord routinely attended or arranged visits when he was absent. He expressly told the landlord that he wished to be present during any visits. On at least one occasion the landlord advised that she would bring a trades person at very short notice and refused to explain the reason stating that he had no right to question it.
- The tenant accepted that he had raised repair issues and had served a notice to remedy but says that this did not amount to consent to entry without notice.
- The landlord maintained that all visits were prompted by the tenant’s repair requests and notice to remedy.
- I'm satisfied that the landlord, or tradespeople engaged by her, entered the premises on at least one occasion without the landlord having given the tenant the notice required by section 48.
- The landlord accepts that notice was not provided. Her response rests on the proposition that the tenants service of a notice to remedy amounted to consent to enter the premises. That proposition is incorrect in law.
- A notice to remedy puts the landlord on notice of a breach and may oblige the landlord to take steps to remedy it. It does not remove the landlord’s obligation to comply with section 48.
- I am satisfied the landlord entered or caused entry to the premises and that the required notice under section 48 was not given. I am further satisfied that the tenant did not consent to entry without notice in that no statutory exception applied.
- Accordingly, I am satisfied that the landlord committed an unlawful act under section 48(4) of the Act.
- Unlawful entry is one of the breaches for which exemplary damages may be awarded. In assessing exemplary damages, the tribunal must consider the factors set out in section 109(3) including the intent of the landlord, the seriousness of the breach, and whether it was deliberate.
- In this case the landlord knowingly entered without notice and asserted a belief that she was entitled to do so. Although the landlord’s motivation was to address maintenance issues rather than to harass the tenant, the breach was deliberate in the sense that the landlord chose not to comply with the statutory notice requirements.
- An award of exemplary damages is therefore justified to mark the seriousness of the breach in to reinforce the importance of compliance with section 48. I award exemplary damages of $500.00, being one third of the maximum penalty.
- The filing fee was reimbursed from the bond therefore I make no further order in respect of this. Landlord application Cleaning claim
- Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986.
- The tenant must also replace standard light bulbs.
- The landlord claims that the tenant did not leave the premises in a reasonably clean condition.
- The landlord claims $69.00 for cleaning mould off the bathroom ceiling. The landlord says that the tenant should have cleaned the ceiling at the end of the tenancy.
- The tenant does not agree with the claim. He says that when he handed over the property on 5 June 2025 the landlord did not raise this as an issue. He says there is no evidence of this as at the move out date.
- The tenant raised the issue of the bond with the landlord on or about 25 June 2025. The tenant states that the landlord advised that there was mould on the walls and ceiling in the main bedroom, living room and bathroom. The tenant replied that he left the property approximately 20 days ago and that the landlord was only now coming to him about the mould.
- The tenant says that he took photos on 5 June 2025 and maintains that he left the premises reasonably clean and tidy.
- The landlord says that the mould issue has been raised over the years which can be seen by the emails. The landlord says that the mould issue is not new and has never been properly dealt with by the tenants.
- The landlord also says that she had an electrician install an extractor fan back in 2021. The landlord says that the tenant stated that he would not use the extractor fan as it costed money to operate. The tenant does not agree with that statement.
- The landlord provided photographic evidence of the bathroom ceiling where the presence of mould was present. Analysis
- Having considered the evidence I am not satisfied that the landlord has discharged her burden in respect of this claim.
- The landlord has the burden to prove that at the end of the tenancy the tenant failed to leave the premises in a reasonably clean condition.
- The landlord did not provide an exit inspection report with photographic evidence taken at the end of the tenancy. The only photos of the ceiling were taken on 18 May 2025 which was during an inspection.
- In order to succeed with a claim for vacated compensation the landlord would need to provide proper entry and exit inspection reports confirming the condition of the premises at the start and end of the tenancy. At the very least I would have expected comprehensive photographs taken on either 5 or 6 June 2025 confirming the condition of the premises, including the bathroom ceiling.
- Accordingly, the claim for cleaning has not been established.
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. Bathroom vanity
- The landlord claims that the tenant damaged a bathroom vanity unit.
- The landlord claims the amount of $387.00 for a damaged bathroom vanity. The landlord says that the vanity unit was one piece and, because the unit was damaged by shower water, the entire vanity had to be replaced. She says that the bathroom vanity was rendered useless after the damage. The landlord says that the unit was 10 years old. The landlord produced a receipt from Mitre 10 for a new vanity.
- The tenant does not agree with the claim. The tenant raised a concern with the landlord that the vanity unit was coming off the wall. The tenant says that a plumber looked at the vanity in his absence. The tenant says that the landlord did not raise an issue at the end of the tenancy. The tenant says that it was working fine except it was coming off the wall. The tenant says that the landlord originally said it was fine but is now saying it is not.
- The landlord says that while it was usable in a sense that you could wash your hands it was not usable given that the door would not close. The landlord says that it was caused by careless use by the tenant.
- The landlord says that the photos of the old vanity were taken on 10 February 2026, nearly 8 months after the tenancy ended.
- The tenant says that the door was not damaged. Analysis
- The landlord has not provided proper evidence in support of their claim for damage compensation.
- As recorded for the cleaning claim the landlord has not provided entry and exit inspection reports with her application.
- There are no photos provided confirming the condition of the vanity at the start of the tenancy on 13 December 2020 and at the end of the tenancy on 5 June 2025. The landlord provided a photo of the old vanity dated 10 February 2026.
- On the balance of probabilities, I am also not persuaded that the vanity damage is a result of the careless actions by the tenants, having regard to the age and location of the vanity unit.
- I also find that the evidence provided by the landlord in support of this claim is unreliable. The claim made by the landlord is not supported by the evidence filed with the application.
- The landlord’s claim for damage compensation has not been established.
- Because the landlord’s application has been unsuccessful I do not reimburse the filing fee.