Published tribunal order
Tenancy Tribunal case 5424713 — Rent arrears at 809A Queen Street East, Parkvale, Hastings 4122
Decided 10 Aug 2026 · Published 10 Aug 2026 · Application 5424713
- Rent arrears
- Property damage
Order
- [The tenant/s] tenant/s] and [The tenant/s] tenant/s] must pay [The tenant/s] landlord/s] $7,108.00 immediately, calculated below.
Reasons
- The landlord attended the hearing.
- The tenants did not attend. I was able to phone Ms Behniwal on two occasions but on each call was told she couldn’t hear me – although the landlord on the other line was able to.
- Several more calls were made to Ms Behniwal’s number but all went to voicemail. I asked the Registry to e-mail Ms Behniwal to let her know I was trying to contact her and to let her know she should use the steps set out in the Notice of Hearing e-mailed to her on 9 July 2026 if she wanted to join the hearing.
- A directions Order was issued on 28 May 2026 after a case conference. Those directions required the tenants to provide any evidence and any cross application they wanted considered, by 11 June. Nothing has been filed by the tenants.
- In those circumstances I considered it would be unfair to the landlord not to proceed with the hearing.
- The landlord has applied for rent arrears, compensation and reimbursement of the filing fee following the end of the tenancy.
How much is owed for rent?
- This was a fixed term tenancy ending on 3 August 2026.
- The landlord’s evidence is that he became aware that the tenants were likely to have moved out at the end of 2025. A visit to the premises on 4 January 2026 confirmed that they had gone.
- The landlord arranged for the premises the be cleaned and repaired and looked for new tenants. A new tenancy began on 6 February 2026.
- The landlord has provided rent records showing that to 5 February 2026 there was unpaid rent of $8,864.29.
- The tenant’s position at the earlier hearing was that they had left because the owner had unlawfully terminated their tenancy.
- The owner had been communicating with the tenants about unpaid rent. He gave notice that he intended to do an inspection of the premises and that as he had a key he would be able to do the inspection even if they weren’t there. The tenants (incorrectly) responded that he would be trespassing if he did so.
- On 5 December 2025 the owner e-mailed the tenants to say that a real estate agent would be visiting the premises. A following txt stated “My family has moved into this property. I will make the necessary plans.”
- My recollection of the tenant’s position from the directions hearing is that they were not at the premises then as they were having a child and returned to find other people around the property who they assumed to be the owner’s family, so the tenants moved out.
- The Tribunal needs to decide whether: a. the 5 December txt was effective to end the tenancy; and/or b. whether the tenants were entitled to consider the tenancy ended.
- This was a fixed term tenancy. Neither party was able to end it by notice so that txt cannot have been effective to end it.
- The landlord has not been able to give a helpful explanation of what was behind that txt or what it was intended to achieve.
- However, my finding is that the tenants were not entitled to take it as ending the tenancy because: a. they know they had a fixed term tenancy that couldn’t be ended by notice; b. there is no evidence of the tenants having questioned at the time what was at best an ambiguous e-mail from the owner; c. they must have been aware that the owner’s family had not in fact moved in; d. they continued to pay rent beyond the date they say the landlord had terminated the tenancy (last rent payment was made on 11 December); e. the owner sent the tenants a txt on 26 December saying, “....this is my final e-mail to let you know, I’m giving you 14 day notice period to clear rent arrears. Fail to do so will result tenancy tribunal dispute and I’m prepared to do this.” That communication is not consistent with the landlord having already ended the tenancy before then.
- For those reasons I find that: a. the tenancy was not ended before the end of the fixed term; b. the landlord took reasonable steps to mitigate the tenants’ breach by establishing a new tenancy; c. the tenants are accordingly liable for rent up to the date the new tenancy began.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy tenants 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 1 . 1 S.40(1)(e)(ii)-(v) RTA
- Photo evidence and evidence given by the property manager proves that at the end of the tenancy the tenants did not remove all rubbish. A large quantity of material, some of it bulky furniture, including chattels provided with the tenancy that had been damaged during the tenancy, was left. The landlord claims the dump fees which are proved by the receipts provided. That claim is approved.
- The landlords claim included cleaning costs but apart from the rubbish, evidence has not been provided proving that the tenants did not leave the premises reasonably clean and tidy. That claim is dismissed.
Are the tenants responsible for 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 2 .
- 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.
- Tenants are liable for the cost of repairing damage that is intentional. This applies to anything the tenant does and anything done by a person they are responsible for 3 .
- The landlord has provided the entry inspection notes included in the agreement.
- Photographs taken at the final inspection show: a. significant damage to bedroom 4 b. staining to the carpets in all rooms; c. broken/ removed towel trials; d. a fixed kitchen table removed; e. a hedge at the front of the property cut down.
- That damage is not recorded in the entry inspection notes. I am satisfied that it occurred during the tenancy and is more than fair wear and tear.
- The landlord made an insurance claim. The repair work to bedroom 4 was covered by one claim with an excess of $500.00 paid. The landlord is entitled to be compensated for that loss. 2 S. 49B(3)(a) RTA 3 S. 49B(1) RTA.
- The carpet damage in two of the rooms was covered by the insurer, with a separate excess payable for each claim. The landlord is entitled to compensation for that loss.
- The property manager replaced the rails and seeks compensation for the replacement cost which is proved by the receipt provided.
- I have declined a claim for the cost of the carpet cleaning required by the insurer before accepting the claim for replacement of the carpet. That could/ should be covered as part of the claim.
- As regards the removed kitchen table, the premises have been re tenanted without it having been replaced. The new tenants prefer to use the space for a fridge. I accept that the landlord will either need to reinstate the table to have the damage caused by tis removal, repaired. The landlord should be compensated for the lesser cost at least, which I estimate at $250.00.
- The evidence does not prove that the tenants cut down the front hedge, although the evidence does show them having used the front lawn for parking, which would not have been possible or as convenient with the hedge still there. However, as that damage happened during the tenancy and was not caused by normal wear and tear, it is up to the tenants to provide evidence showing they are not responsible. In the absence of such evidence I find that the landlord should be compensated for at least the cost of replacement plants which I estimate at $200.00. Bond
- The landlord has not lodged the tenant’s bond. Although the tenants have not filed an application or attended today, it was raised and discussed at the prior hearing and it would not be fair to exclude consideration of that breach in this Order.
- Failing to lodge a tenant’s bond payment within 23 working days of receiving it, is an unlawful act for which exemplary damages of up to $1,500.00 may be awarded. The landlord has committed that unlawful act. He did so intentionally ie. it was not accidental.
- In considering whether to make an award of exemplary damaged for his breach, the Tribunal must consider whether it would be just to do so, having regard to his intent in committing the unlawful act, the interests of the tenants or the tenant against whom the unlawful act, its effect, the tenants’ interests and the public interest 4 . 4 S.109(3) RTA
- I consider the following factors to be relevant: a. the evidence suggests that the landlord had intended to lodge the bond and had completed the lodgement form but thought he couldn’t without the tenants’ signatures on the form; b. he could have easily found out that did not prevent the bond being lodged; c. the bond has still not been lodged, despite the parties being in dispute and the landlord having been made aware of the need to lodge it; d. there is no evidence of direct loss or harm being caused to the tenants, although they do have the worry of being usure whether their bond is still there and available to them; e. there is a public interest in landlords being aware of and complying with such fundamental and straight forward obligations. f. There is no evidence of this being a pattern of conduct o the landlord’s part.
- Balancing those factors, my finding is that it would be just to make an award of exemplary damages equal to 1/3 of the maximum specified.
- Because the landlord has substantially succeeded with the claim, I reimburse the filing fee.