Tenancy Tribunal Dismisses Water Damage Claims

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[2025] NZTT 5173711, 5264061

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Unit/[ADDRESS], [POSTCODE]

ORDER

1. The landlord’s application is dismissed.

2. The tenant’s cross-application is dismissed.

Reasons:

1. Both parties attended the hearing.

Introduction

2. This matter involves a dispute over alleged water damage to the ceiling of a commercial unit located beneath a residential apartment at [ADDRESS].

3. The tenant named on the residential tenancy agreement is [NAME]. Although she is the legal tenant, it is not in dispute that she never resided at the property. Instead, her [NAME] occupied the apartment.

4. The landlord was represented at the hearing by [NAME], the senior property manager responsible for managing the property. [NAME] and [NAME] attended the hearing and provided oral submissions and supporting evidence.

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5. The dispute centres on the cause of water damage to the ceiling of the commercial unit below.

6. The landlord’s case, presented by [NAME], alleges that the damage was the result of water overflowing from the laundry tub in the tenant’s unit. In contrast, [NAME] maintains that the cause of the leak was a maintenance issue—specifically, a leak from the hot water tap under the laundry tub, which she argues was due to faulty fittings. In other words, [NAME] did not concede that her mother had left the water running, causing the laundry tub to overflow and damage the commercial unit below..

7. The landlord did not pursue an insurance claim for the damage because the body corporate's insurance policy carried an excess of $5,000. Since the total amount of damage claimed—$2,435.66, including both the repair costs to the commercial unit and the plumber’s inspection fee—was significantly below the excess threshold, any claim against the policy would not be economical. The landlord instead sought recovery directly from the tenant.

[NAME]’s case

8. [NAME]'s case rests heavily on a plumber’s report from [COMPANY]. The water damage was discovered on 6 January 2025. The report describes the plumber’s findings:

Attended the job. Investigated the leak from the ceiling of the shoe shop.

Removed the ceiling tiles and found the water was leaking from the concrete floor.

Went into the 2A/14 and found the laundry tub was flooded and water was all over the stuff under the tub.

Checked everything no leak was found from the laundry tub or hot water cylinder.

Called the Manager and explained the leak was from the overflow from the laundry tub.

9. [NAME] also submitted photographs showing wet surfaces in and around the laundry cabinet and argued that these images supported the overflow theory, citing watermarks and moisture on the interior cabinet door and shelving.

10. He maintained that the apartment was inspected both before the tenancy commenced and after it ended, with no plumbing issues reported in either inspection. Additionally, [NAME] emphasised that as a property manager, he relies on professionals’ opinions and did not conduct his own technical assessment. His position is that the professional conclusion of overflow,

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combined with physical evidence of water exposure, supports the claim that the tenant—or her mother—left a tap running, leading to the damage below.

[NAME]’s case

11. [NAME] firmly denied that the water damage resulted from carelessness. She submitted a video recorded on 20 February 2025, demonstrating that when the hot water tap under the laundry tub is even slightly opened, it drips. She explained that this video was taken shortly after she was informed of the incident, approximately 45 days after the leak was discovered. In her view, this shows that the leak was due to poor maintenance of the tap unit, not misuse by her mother. She also noted that the tap features a double overflow prevention system, making a true overflow unlikely. [NAME] from [COMPANY] said in an email to [NAME]:

“… but the bones of it are that the tub unit has an overflow, and the tub cannot overflow even if the plug is in and the tap is left running.’

12. She provided a timeline to support her case: on 6 January 2025, she and her mother were away in Rewa when they were contacted by the building manager about the leak. They returned promptly, and her mother opened the apartment for the plumber and building manager. According to [NAME], there was no visible water in the apartment when they arrived, and no one observed water actively overflowing. She argued that the actual cause may have been a slow leak absorbed by the carpet near the hot water cylinder over time, which explains why no standing water was visible. She also criticised the delay in communication and expressed frustration that the landlord’s plumber did not engage in a joint inspection with her own plumber to clarify the issue.

The law

13. 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. See sections 40(2)(a) and 49B RTA.

14. 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.

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Analysis

15. The core issue in this matter is whether the landlord has proven, on the balance of probabilities, that the water damage to the commercial unit below was caused by the [NAME] leaving a tap running, resulting in an overflow from the laundry tub. The landlord’s case is based on a plumber’s report from the 6 January 2025 inspection and supporting photographs taken on the same day. The report indicates the laundry tub was flooded and attributes the water damage to overflow, although it notes no leaks were found from the tub or hot water cylinder at the time of inspection.

16. The photographs show some water drops inside and around the laundry cabinet, and there is evidence of water pooling in the commercial unit below. However, the volume of water on the floor of the shop does not appear extensive. There is no suggestion in the evidence that water was actively overflowing from the laundry tub when the apartment was accessed. Indeed, it appears the water had already stopped flowing by the time the plumber and building manager arrived, which undermines the landlord’s theory that a tap had been left running continuously. If a significant overflow had been occurring, one would reasonably expect to find a larger volume of water inside the apartment, and clear ongoing water flow at the time of access.

17. [NAME] submitted a video taken approximately 45 days after the incident, which she said demonstrates a leak from the hot water tap. While I have viewed the video, I place no weight on this evidence. It was not contemporaneous with the incident, and the condition of the fittings may have changed in the intervening time. Furthermore, the video does not directly explain the water observed in the commercial unit or establish a clear alternative source of the damage.

For these reasons, I do not consider that the video assisted me in reaching a conclusion.

18. Nevertheless, I find the landlord has not provided persuasive or conclusive evidence on the balance of probabilities that the [NAME] left a tap running and caused the overflow. There is no direct evidence to support that allegation—only an inference drawn from the plumber’s observations. There was no witness who observed water flowing from the laundry tub at the time [NAME]’s mother opened the door for the plumber and the property manager to enter the premises to inspect, and no documentation establishing that the tap had been left on. This absence of direct or compelling circumstantial evidence is not helpful to the landlord’s case.

Conclusion

19. Having considered all the evidence and submissions, I find that the landlord has not proven, on the balance of probabilities, that the damage to the commercial

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unit was caused by an overflow from the laundry tub due to the [NAME] leaving a tap running.

20. While I acknowledge that the plumber’s report points to an overflow, the absence of direct evidence of water actively flowing at the time of entry into the apartment, the relatively small volume of water observed on the shop floor, and the lack of any supporting witness statements leave too many possibilities. The landlord bears the burden of proof, and in this case, that burden has not been discharged.

21. Accordingly, the landlord’s claim is dismissed.

[NAME]’s cross application

22. [NAME]’s application was based on her denial of responsibility for the water damage to the commercial unit.

23. There is no cause of action for me to consider. 24. Accordingly, the tenant’s counterclaim is dismissed.

M Kan

06 June 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: