Published tribunal order
Tenancy Tribunal case 5375067 — Rent arrears at 55 Marewa Road, Hataitai, Wellington 6021
Published 27 January 2026 · Application 5375067
Landlord favoured
- Rent arrears
Order
- The tenancy of Ngakopa Jean Volkerling, Toa Waaka and Lila Mcintyre-Neary at 55 Marewa Road, Hataitai, Wellington 6021 is terminated, and possession is granted to Kai Property Group Limited, at 11.59 pm on Friday 30 January 2026.
- The Bond Centre is to pay the bond of $3,400.00 (BN-00150911) to Kai Property Group Limited immediately.
- All other claims are dismissed.
- Ngakopa Jean Volkerling, Toa Waaka and Lila Mcintyre-Neary must pay Kai Property Group Limited $4,528.58 immediately, calculated as shown in the table below:
Reasons
- Both parties attended the hearing. The landlord was represented by Mr Tran. Mr Waaka did not attend the hearing.
- Two of the tenants have applied for a reduction of the fixed term tenancy. The fixed term is due to end in May 2026. Ms Volkerling moved out of the tenancy in September and Ms McIntyre-Neary moved the last of her belongings out on 20 December. Mr Waaka continues to live in the house. The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, rent arrears and refund of the bond.
Should I reduce the fixed term tenancy?
- Two of the tenants have applied for a reduction of the fixed-term tenancy due to end in four months time. The Tribunal may reduce a fixed term tenancy where: • there has been an unforeseen change in the applicant’s circumstances; and • there would be severe hardship to the applicant if the term is not reduced; and • the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986 (RTA).
- The difficulty with this application is that only two of the three tenants have asked for the tenancy to end. Mr Waaka continues to live in the house. Full rent has not been paid since the start of November and no rent has been paid since 23 December 2025, but the landlord’s evidence is Mr Waaka does not want to move out. An order the fixed term tenancy is reduced would end the tenancy for all three tenants.
- It seems likely there was an unforeseen change and severe hardship for Ms Volkerling and Ms McIntyre-Neary that was greater than the landlord’s hardship. However I cannot reduce the term to end the tenancy in September, November or on 20 December 2025, because that would leave the landlord without any claim for rent arrears and Mr Waaka has been living in the house. The best I could do is make an order reducing the fixed term to this week, and I can end the tenancy this week anyway because of the rent rears. I find the application for a reduction of the fixed term tenancy is no longer required because I can achieve the same result using section 55 RTA.
Should I end the tenancy because of rent arrears?
- At the hearing we worked through the rent summary. The landlord has correctly calculated the total rent payable for the period. The rent is at least 21 days in arrears on the hearing date, and so I have grounds to end the tenancy. See sections 55 and 56(2) RTA.
- The tenancy is terminated because of rent arrears. The landlord has asked for possession on Friday to give Mr Waaka time to move out. This will also give Ms Volkerling time to remove the last of her belongings.
- The tenants are jointly and severally liable, which means they are all responsible for the rent arrears, even though two of the tenants moved out last year. This is because there has been no agreement between the tenants and no variation of the tenancy contract. The bond is there to protect the landlord’s interests and should be refunded to reduce the arrears.
- The landlord can choose who he wants to pursue for the debt.
- I note that Ms Volkerling advised at the hearing that she is happy to pay her share but will need to make an arrangement for weekly payments.
- I note that Ms McIntyre-Neary’s submission is she paid her share of the rent for the 28 weeks she was there and this was not disputed by the landlord.
Should the tenants pay for replacement carpet?
- One of the tenants scorched the carpet in her bedroom trying to iron on a towel on the floor. The landlord has claimed the cost of replacing the carpet in the room. The 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. 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. See section 49B(3)(a) 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.
- It is agreed evidence that the damage happened during the tenancy and it is more than fair wear and tear. The tenant said this was the first and only time she attempted to iron on the floor, so I find the damage was not intentional. I find the damage was most likely careless because the tenant took a risk ironing on the carpet.
- A finding of careless damage means the tenants’ liability is limited to the insurance excess. This has not been disclosed in the tenancy agreement, as is a requirement of the RTA. At the hearing the landlord said the excess was $300.
- However, the law does not require tenants to replace carpet just because they caused damage. I am not allowing the claim for replacement carpet because of betterment and depreciation. The landlord should be returned to the position it would have been in had the tenant not breached her obligations, and should not be better or worse off. The carpet was at least 12 years old. The tenant said there were marks on it when she moved in and areas of wear. The carpet is still functional because there is a scorch mark rather than a hole. It seems most likely to me any order for compensation would mean the tenant is paying for an improvement and so this claim is dismissed.
Can the landlord claim compensation for stress and inconvenience?
- The landlord has claimed compensation for the additional time spent managing this tenancy and for the stress of having to rearrange his finances to cover mortgage payments. This is not a claim which can be made under the RTA. This claim is dismissed. Other orders
- The bond will be refunded in full to the landlord. A request has been sent to the Bond Centre.
- The landlord has proved one of the applications and I must reimburse the filing fee. The tenants’ application for reduction of the fixed term tenancy was sufficiently proved and they get the filing fee for that.
Property management
- KAI PROPERTY GROUP LIMITED (respondent)