Tenantcheck Insights · Case study
Tenancy Tribunal case 5467014 — Rent arrears at 44 Endeavour Avenue, Flagstaff, Hamilton 3210
Published 6 May 2026 · Application 5467014
Landlord favoured
- Rent arrears
- Property damage
At a glance
Key facts from the published tribunal order.
Outcome
Landlord favoured
From published order
Location
Hamilton
Tribunal region
Adjudicator
G Barnett
Dispute themes
Award balance
Gross awards, any bond applied per the order, and the remaining balance payable.
- Gross award
- $1,404.57
- Total balance for Tenant to pay Landlord
- $164.57
Claims & awards
What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.
| Claim | Landlord | Tenant | Reason |
|---|---|---|---|
| Rent arrears to 15 March 2026 | $600.57 | Rent arrears to 15 March 2026 | |
| Lock/key replacement | $184.00 | Lock/key replacement | |
| Rent rebate 25 January 2026 – 01 February 2026 | $620.00 | Rent rebate 25 January 2026 – 01 February 2026 | |
| Total award | $784.57 | $620.00 | |
| Net award | $164.57 | ||
| Total payable by Tenant to Landlord | $164.57 |
Claims and awards for application 5467014 — net $164.57 NZD. Verify on MoJ.
Rent arrears to 15 March 2026
- Amount
- $600.57
- Awarded to
- Landlord
- Reason
- Rent arrears to 15 March 2026
Lock/key replacement
- Amount
- $184.00
- Awarded to
- Landlord
- Reason
- Lock/key replacement
Rent rebate 25 January 2026 – 01 February 2026
- Amount
- $620.00
- Awarded to
- Tenant
- Reason
- Rent rebate 25 January 2026 – 01 February 2026
Total award
Landlord $784.57 · Tenant $620.00
Net award
Landlord $164.57
Total payable by Tenant to Landlord
Landlord $164.57
Dismissed claims
- Property Damage
Claim types — money lines allowed on this order
Order
- Samantha Braddock to pay Utrust Property Management Limited $164.57 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $164.57 (BN-16589640) to Utrust Property Management Limited immediately. The Bond Centre is to pay the bond of $2,315.43 (BN-16589640) to Samantha Braddock immediately.
Reasons
- Ms Liang, Property Manager, appeared for the landlord. The tenant appeared and was accompanied by a support person.
- The tenant claims that a flood at the property made it uninhabitable from 25 January 2026. The tenant seeks a refund of the bond, a rent abatement from 25 January 2026 to the end of the tenancy on 15 March 2026 totalling $4,340.00, and storage costs of $335.00.
- The landlord claims that the tenant is responsible for the flood and the resulting damage to the carpet, as well as damage to the front fence, and for failing to return the garage remotes. The landlord is seeking the insurance excess of $1,100.00 for the flood damage, $920.00 for repairing the fence, $172.50 for a builder’s report, $172.50 for a plumber’s report, and $184.00 to replace the missing garage remotes. The landlord also seeks rent arrears to 15 March 2026 of $600.57.
- The onus of proving these claims rests with the party making them. The standard required is the balance of probabilities. In this case, each party must establish that it is more likely than not that the other has breached the terms of the agreement or the provisions of the Residential Tenancies Act 1986 (Act)
- In reaching my decision I have considered all evidence placed before the Tribunal, even if I do not specifically refer to it.
- The tenant does not dispute the claim for the missing garage remotes. These were provided at the commencement but were not returned at the end. The claim for replacing and recoding the remotes is reasonable and awarded. Damage to front fence
- The landlord states that on 14 September 2025, the tenant reported that the front fence had been damaged during significant weather event involving high winds. The landlord sent a contactor to inspect the damage and provide a repair quote. The landlord states that on 03 November 2025, the fencing contractor verbally reported that the damage was not typical of wind damage and was more consistent with having been struck by a vehicle. The landlord has produced an email from the fencing contractor dated 21 March 2026, which includes a photograph of the fence.
- The damaged area is a corner post next to the driveway near the road. The post is cracked at the bottom. While the fencing contractors written report confirms that the damage is “not typical of failure caused solely by strong wind,” it does not identify any alternative cause.
- The landlord stated that that the quote was accepted, and the work carried out after the tenant had vacated as it was not deemed to affect the structural integrity of the fence or functionality of the gate.
- The tenant denied responsibility for the damage. The tenant stated that the fence had been damaged during a significant weather involving high winds in September 2025 and that it was reported to the landlord immediately. The tenant denies that the damage did not affect the structural integrity of the fence and stated that they had used a metal bar to prop the fence from the inside.
- The property was built in the 1980’s. The fence is an original feature. The photograph of the fence produced showing it before and after it was repaired shows signs of general fair wear and tear relative to its age, which is over 40 years. Flood
- On 25 January 2026, the tenant reported a flood that affected the carpet in the hallway and two bedrooms. The landlord said that a plumber attended the property the same day. The plumber could not find any issues with the plumbing but noted that, since the water appeared to have come from the laundry, it may have been related to the tenant’s washing machine.
- Later that afternoon, a building contractor also attended the property. The landlord has provided the contractor’s report dated 25 January 2026. In the report, the contractor confirmed there were no plumbing issues, agreeing with the plumber’s findings. The contractor stated: “The washing machine waste pipe was connected into the DWV by the laundry tub. The pipe is easy to fall out and would highly result in a floor leak.”
- The landlord interprets this to mean that the flood was likely caused by the washing machine waste pipe becoming dislodged from the laundry tub waste pipe, which they claim was due to carelessness by the tenant.
- The tenant denies responsibility for the flood and state that the washing machine had been professionally installed. They also state that during a visit, the insurance assessor tested the machine and had detected no fault with the waste hose connection.
- The tenant stated that on 26 January 2026, a contractor visited, lifted the carpet in the affected areas, and installed dryers. The tenant said the dryers were noisy and disturbed carpet fibres, and they did not think it was appropriate for them and their two young children, one of whom has a respiratory condition, to remain living at the property. As a result, they went to stay elsewhere.
- The tenant stated that although the carpets had been significantly dried by 28 January 2026, a strong damp odour remained.
- On 02 February 2026, the tenant sent the landlord photographs of mould that had formed on the inside back wall of the linin cupboard in the hallway and surface mould on children’s backpack stored inside.
- The tenant stated that the plumber, building contractor, and insurance assessor had all stated, in front of the property manager, that the property was uninhabitable.
- On 22 February 2026, the tenant advised the landlord that the plumber, building contractor, and insurance assessor had all confirmed that the property was uninhabitable, and invited the landlord to consider a rent abatement, compensation, or mutual termination of the tenancy. On 23 February 2026, the landlord emailed the tenant declining but stating that they would accept 21 days’ notice starting from that date.
- The landlord denied that they had been told by the plumber and the building contractor, in front of the tenant that the property was uninhabitable but agree that the tenant had been present when they had been told by the insurance assessor stated on 28 January 2026 that the property was not suitable for habitation until the carpet was completely dry. The landlord stated that by that date the carpet was almost dry. The tenant later accepted that the property manager had not been present when the plumber and building contractor had commented about the habitability of the property.
- On 10 March 2026, the tenant gave a two day notice to end the tenancy on 12 March 2026 on the basis that the property was uninhabitable, referring to the Act but not specifying a section.
- The landlord stated that the insurance assessor arranged a second building contractors visit which confirmed that there was no defect with the plumbing. On or about 23 March 2026, the landlord’s insurer accepted a claim to replace the carpet or provide a cash payout on the basis that the flood resulted from a “sudden, unexpected leak in the laundry’. Law Damage
- To succeed with a claim for damage the landlord must prove that damage 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 of the Residential Tenancies Act 1986 (Act).
- Fair wear and tear can be described as damage which might reasonably be expected to naturally occur over time, such as the deterioration or gradual wear occurring with everyday use. See Taylor v Webb [1937] 2KB 283 (CA).
- 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) of the Act.
- The landlord has insurance for damage with an excess of $550.00 per claim.
- 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) of the Act.
- 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.
- In dealing with the issue of carelessness the question is whether the tenant was exercising a degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances. The test is objective and not based on the subjective opinion of the tenant or landlord.
- The Tribunal may award damages for losses arising from a breach that are reasonably foreseeable, that is a loss that naturally flows from the breach. Losses that do not will be considered too remote.
- When awarding compensation for damage, the Tribunal must also consider betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating betterment and depreciation, the Tribunal must consider the age and condition of the items at the start of the tenancy and their estimated useful life. Habitability
- Section 59 of the Act states: 59 Destruction of premises (1) Were, otherwise than as a result of a breach of the tenancy agreement (whether for a fixed-term tenancy or a periodic tenancy), the premises are. destroyed, or are so seriously damaged as to be uninhabitable, — (a) the rent shall abate; accordingly, and (b) either party may give notice to the other terminating the tenancy. (2) Where a landlord gives notice of termination under subsection (1), the period of notice shall be not less than 7 days. (3) Where a tenant gives notice of termination under subsection (1), the period of notice shall be not less than 2 days. (4) Were, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged. as to be uninhabitable, — (a) the rent shall abate; accordingly, and (b) either party may apply to the Tribunal for an order terminating the tenancy, and the Tribunal may make such an order if it is satisfied that it would be unreasonable to require the landlord to reinstate the property or (as the case may require) to require the tenant to continue with the tenancy albeit at a reduced rent. (5) This section does not apply in relation to damage that is contamination by a contaminant if regulations prescribe a relevant method of testing for, and a relevant maximum inhabitable level of, that contaminant (but see section 59B).
- The term uninhabitable is not defined in the Act. In Salcin-Watts v Accommodation Centre Ltd, TT 11/1440/CH, 05 July 2011, the Tribunal treated it as synonymous with untenantable, a concept more commonly used in commercial leases and previously considered by the courts.
- In that case, the Tribunal relied on DFC NZ Ltd v Samson Corporation Ltd (1993) 136 ANZ ConvR, where untenantable was defined as a property not able to be used and enjoyed by the tenant.
- The Court also held that the condition must have some degree of permanence, temporary or minor issues are not enough. This interpretation has been followed in later High Court cases, see Russell v Robinson CIV – 2010 – 404 – 5992, 10 March, 01 April 2011 (HC).
- In First Avenue Property Ltd v Malik, DC Christchurch CIV 2011 – 009 – 1530, 23 November 2011, the Court endorsed a flexible, case-by-case approach to determining uninhabitability, which may include consideration of the tenant’s personal circumstances.
- Finally, in Khorozova v AJ McPherson and Associates Ltd, TT09/02957/CH, 05 August 2009, the Tribunal held that under section 59, the primary remedy is rent abatement or refund. Compensation or damages require a separate breach of the tenancy agreement or the Act. Analysis and decision Damage to fence
- The issue with the fence is whether the damage is more than fair wear and tear, and if so, whether it was caused by carelessness. The fencing contractor’s written report states that the damage is not typical of damage caused by high winds but does not suggest any other cause. I cannot reject the tenant’s evidence that the damage was caused by high winds.
- I must make an objective assessment. The fence post is on the corner of the driveway, near the road. I also note that the fence is wooden, over 40 years old, and shows general signs of wear and tear. While I am satisfied that the damage occurred during the tenancy, given the location and age of the fence, and the lack of definitive evidence, I am not satisfied that the tenant is responsible. The claim for the fence damage is dismissed.
- Turning to the landlord’s claim that the tenant is responsible for the flood: Both the plumber and the building contractor could not find any issues with the plumbing system. They identified the source of the leak as the laundry, possibly the washing machine waste outlet.
- The insurance assessor found that the flood was caused by a “sudden, unexpected leak in the laundry.”
- However, there is no conclusive evidence that the flood was actually caused by the washing machine waste outlet becoming dislodged, or that, if it was, this was due to carelessness by the tenant.
- Furthermore, while there was a flood, there is not enough evidence to show that the carpet was damaged to the extent that it needed to be replaced, rather than simply lifted, dried, and re-laid. The claim relating to the flood is dismissed. Habitability
- Having found that the tenant is not responsible for the flood, the issue turns to whether, as result, the property was rendered uninhabitable under section 59 of the Act and the tenant entitled to give two days’ notice.
- The mould shown in the photographs is limited to a small area on the back wall of the linen cupboard. There is no evidence that it spread further through the property. The mould appears to have formed recently and, although likely caused by general dampness, could have been easily removed.
- I also note that the property may have been closed up for some time, as the tenant vacated on 25 January 2026 and only returned to meet the property manager, building contractor, and insurance assessor. It is therefore not surprising that the property smelt musty and damp.
- While I accept that the tenant’s personal circumstances meant that remaining at the property with the dryers running continuously was untenable, I am not satisfied that this was more than a temporary. In my view, as confirmed by the insurance assessor, the property was likely temporarily uninhabitable until the carpets had been properly dried. However, due to the lack of permanence, the property cannot be objectively considered uninhabitable for the purposes of section 59.
- The claim that the property was uninhabitable is dismissed. Rent arrears, abatement, and compensation.
- When it became clear that the tenant was not going to return the property after 25 January 2026, I am satisfied the landlord was entitled to treat the tenant’s email of 22 February 2026 as 21 days’ notice to end a periodic tenancy under section 51(2A) of the Act. In doing so, the landlord was taking appropriate steps to mitigate loss under section 49 of the Act. The rent summary shows that the tenant was paid up to 01 March 2026. The landlord seeks $600.57, equivalent to 6 days rent. I am therefore satisfied that the landlord is entitled to the rent arrears claimed.
- As the property cannot be defined as uninhabitable under section 59 the Tribunal is unable to abate the rent under that section.
- However, under section 45(1)(b) of the Act, the landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises.
- Whether the landlord has failed to meet their obligations will involve an objective assessment of the evidence.
- The landlord stated that they had been present on 28 January 2026 when the insurance assessor advised that the property was uninhabitable until the carpets were completely dry. On that date, the landlord accepted that the carpets were not completely dry.
- Although neither party was responsible for the flood, the obligations under 45(1)(b) rested on the landlord to provide and maintain the premises. Although the flood did not meet the higher threshold of uninhabitably under section 59, until the carpets were dried the property was temporarily not in a reasonable state of repair.
- On that basis, I am satisfied that the tenant is entitled to a rent rebate until carpets had been fully dried. I find that the use of dryers and ventilation, the carpets would have been dry by 01 February 2026 which was 7 days after the flood. I therefore allow a rent rebate of seven days, amounting to $620.00.
- Compensation requires a breach, not merely a loss. Although I am satisfied that a rent abatement is appropriate, I am not satisfied that the landlord is liable for the tenant’s storage costs nor for any damage to property and those claims are dismissed. Costs
- Under section 102 (4) of the Act, the Tribunal has the discretion to reimburse the filing fee of a party that has been partly successful with their claim.
- As both parties have been partly successful, any reimbursement to one would be cancelled by the award to the other. No orders are made. Name suppression
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that their name or identifying particulars of that party not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- Neither party seeks name suppression, and no orders are made.
Topics & place
Topics are dispute themes across the order (not the same as claim-type money lines).
Residential Tenancies Act sections
s102, s21, s40(2), s45(1), s49, s49B, s49B(3), s51(2A), s58, s59, s59B, s7, s95A
Key findings
- Dispute theme: rent arrears
- Dispute theme: property damage
Property management
- UTRUST PROPERTY MANAGEMENT LIMITED (respondent)
Frequently asked questions
Common questions about this Tenancy Tribunal case.
What was the outcome of Tenancy Tribunal case 5467014?
The tribunal order states: Samantha Braddock to pay Utrust Property Management Limited $164.57 from
How much money was awarded in case 5467014?
Property Damage: $184.00 awarded to landlord; Rent Arrears: $600.57 awarded to landlord; Rent Rebate 25 January 2026 – 01 Feb…: $620.00 awarded to tenant
What type of tenancy dispute was case 5467014?
The primary dispute was Rent arrears. Related themes: Property damage.
Where can I read the official tribunal order for case 5467014?
The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13537186-Tenancy_Tribunal_Order.pdf.