Published tribunal order
Tenancy Tribunal case 5415946 — Property damage at 16 Tirotai Crescent, Westmere, Auckland 1022
Published 1 April 2026 · Application 5415946
Landlord favoured
- Property damage
Order
- The Bond Centre is to pay the bond of $430.50 (3557270-021) to 360 Property Management Limited As Agent For Sarah And Kevin (The Shoebridge Trust) Shoebridge Cherie Buissink immediately.
Reasons
- Both parties attended the remote hearing.
- The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. The landlord’s claims for water rates arrears and cleaning were withdrawn by the landlord.
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. The landlord is insured. The landlord’s policy of insurance carries an excess of $400.00 on each and every claim.
- 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.
- The parties essentially occur on the facts but are not able to agree on the law.
- The parties agree that during the course of the tenancy, the tenant installed hooks in a number of areas of the house.
- At the end of the tenancy, the tenant removed the hooks and plastered the holes. The tenant did not paint the plastered areas.
- The landlord provided photos of the holes and a quote for repainting the damaged areas of $402.50.
- The tenant did not consider that he was responsible for what he termed “cosmetic repairs”.
- In order for compensation or damages to be awarded against the tenant, the loss must flow from the breach of the tenancy agreement or provisions of the Act. In discussing the Tribunal’s power to award compensation or damages, Judge Hole in McKay v Moore (No 1) DC Napier MA1205/90, 24 October 1990 set out the applicable legal principles as follows: “(a) So far as money can do it, the injured party shall be put in the same position as he would have been in but for the breach of the tenancy agreement. (b) Liability exists for reasonably foreseeable losses flowing from the breach (of the tenancy agreement). (c) Damage may be foreseeable, either (i) because the damage is such as may fairly and reasonably be regarded as arising naturally, that is to say, according to the usual course of things from the breach, or, (ii) because of special knowledge at the time of making the contract. In the latter case, the actual ‘special knowledge’ must be proved.”
- For the landlord to be put in the same position as the landlord would have been ,but for the breach of the tenancy agreement by the tenant, the holes and plaster needed to be painted. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The landlord’s claim is proven.
- As 360 Property Management Limited As Agent For Sarah And Kevin (The Shoebridge Trust) Shoebridge Cherie Buissink has wholly succeeded with the claim I must order the tenant to reimburse the filing fee.