Tenant Awarded Compensation for Loss of Amenity Due to Fridge Replacement

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[2025] NZTT 5098649, 5172155

TENANCY TRIBUNAL - Auckland | Tāmaki Makaurau

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: Room Suite 4O, [ADDRESS], [POSTCODE], Columbia Apartments

ORDER

1. [COMPANY] As Agent For [NAME] must pay [NAME] $472.86 immediately, being compensation for loss of amenity.

2. [NAME]’s: application to reduce the fixed term tenancy; application for an Order that the landlord provide metered invoices form the [NAME]; and claim for misrepresentation, are dismissed.

3. [COMPANY] As Agent For [NAME]’ application (No: 5172155) is dismissed.

Reasons:

4. This is a reserved decision. The hearing took place on 21 February 2025 at Auckland District Court. The tenant attended the hearing. [NAME] of [COMPANY] attended the hearing on behalf of the landlord.

5. The tenant has applied for an Order reducing the term of the fixed term tenancy and/or termination of the tenancy for misrepresentation, compensation for loss of amenity, suppression of his identifying details and reimbursement of the filing fee.

6. The tenant also applied for an Order that the landlord provide metered invoices from the [NAME]. The tenant had applied for a similar order in respect of electricity. However, at the hearing the tenant advised that this issue has been resolved and the claim in respect of electricity was withdrawn.

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7. The day before the hearing, the landlord lodged a counterclaim against the tenant. At the hearing, the landlord confirmed that the application was a response to the tenant’s claims and not an actual application for Orders from the Tribunal.

8. The landlord’s cross application is dismissed.

A. Legal considerations:

9. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. The party bringing the claim must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

10. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that:

… [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

11. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

B. Did the landlord breach the tenancy agreement by replacing the fridge with a smaller one and, if so, should the tenant be awarded compensation for loss of amenity?

12. In October 2024, the tenant contacted the landlord’s agent to say that the freezer was not working well. The landlord’s agent asked the tenant to ensure that the settings were on the maximum setting. The tenant changed the settings and the issue was resolved.

13. In the meantime, unaware that the tenant had resolved the issue, [NAME] said he had advised the landlord of the problem the tenant had been experiencing with the fridge. [NAME] said that due to the issue with the fridge and the age of the fridge, the landlord’s instructions were to replace it.

14. [NAME] made arrangements for the fridge to be replaced. [NAME] did not communicate with the tenant directly on this issue, instead he left it to the

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contractor who delivered the fridge to liaise with the tenant to gain access to the premises. The tenant said that the contractor did not advise him that the fridge was being replaced but that he required access to the premises for maintenance. The tenant said he returned home on 14 November 2024 to find the fridge had been replaced.

15. The replacement fridge has a reduced capacity than the previous fridge. The tenant says there was around a 28% reduction in capacity and the landlord says it was around a 19% reduction. The tenant did provide a photograph of a sticker from the previous fridge showing the capacity size. However, this photograph had been enlarged and I was unable to ascertain what was recorded on the sticker.

16. I find that that fridge had a reduced capacity than the previous fridge of at least 19%.

17. The landlord says that the fridge was a reasonable replacement and in many ways was an improvement on the previous fridge.

18. The tenant says that the fridge was not a reasonable replacement and was not fit for purpose because of its reduction in capacity. The tenant says that he usually purchases food in bulk and that this saves money and time. The tenant said that due to the reduction in fridge capacity he is unable to store the bulk foods that require refrigeration and has to visit the supermarket more frequently.

19. The chattels list states that the fridge provided is a “Fridge/Freezer F & P Good working order”. The replacement fridge is not a F&P fridge. The tenant referred to the chattels list and section 13A of the Residential Tenancies Act 1986 (RTA) which provides that a list of chattels provided by the landlord must be included in the tenancy agreement. I note that section 13B of the RTA provides that any variation of a tenancy agreement must be in writing and signed by both parties.

20. The tenant says, and I accept that the chattel list forms part of the tenancy agreement. The tenant further says that as the chattel list formed part of the tenancy agreement, the landlord could not replace the fridge which was not F&P as stated in the chattel’s list without his agreement.

21. I disagree. I do not consider that replacing a chattel with a different model or brand as that stated in the list of chattels amounts to a variation of the tenancy agreement. However, I do accept that a reduction in fridge capacity has resulted in a loss of amenity to the tenant and that the tenant should be awarded compensation. The tenant has requested compensation of $114.15 per week being $12.15 for the estimated savings he was previously benefiting from buying in bulk and the remainder being the value of his time in having to visit the shops with increased frequency.

22. I do not accept that the inconvenience suffered by the tenant is to the extent claimed. I consider a fair amount of compensation to be $10 per week for the

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period from 14 November 2024 to the date the fixed term tenancy is due to end, 10 October 2025 (a period of 47 weeks and 2 days).

23. This claim is proved and I award compensation of $472.86.

C. Should the landlord be ordered to provide the tenant with the metered water invoices from the [NAME]?

24. The parties agree that the tenant was sent an invoice for water charges for $60 per month. The tenant asked the landlord for the invoice with the metered charge from the [NAME] to be provided. The landlord’s accounts person responded saying that the “invoice is the invoice” and to “pay it asap”.

25. [NAME] says that the [NAME] only provides the landlord with the monthly metered invoices from the [NAME] every 12 months. [NAME] said that the landlord sends ‘estimated’ invoices to tenants in this building to avoid sending them a large bill every 12 months. [NAME] said that they have asked the [NAME] to provide the metered invoices each month, but the [NAME] refuses to do so. [NAME] further says that the tenant does not have to pay the estimated charges but will then be given a large invoice at the end of the year.

26. [NAME] said that the accounts person who told the tenant that he was to pay the estimated invoice speaks English as a second language and her emails are often direct. [NAME] said that once he got involved in the issue, he explained the above to the tenant including that the tenant was not obliged to pay the invoice for water until he received the metered invoice from the [NAME].

27. Section 39(3) of the RTA provides:

The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities. Therefore, a tenant is not liable to pay a fixed charge for water not calculated by metered use.

28. A landlord cannot prove a tenant’s outgoings without a separate water meter or check meter. Landlords are obliged to provide the metered invoices when received by them. Usually, landlord’s receive the invoice from the [NAME] monthly. Failure to promptly pass on an invoice from a [NAME], may (and I say “may” because I am not required to make a finding on this point) result in the landlord having difficulty recuperating the full charges from the tenant on the basis that it has failed to mitigate its losses.

29. In this case, the landlord is not providing the invoices monthly but annually because the [NAME] will only provide them to the landlord once per year. I find that the landlord can only be required to provide the invoices that are available to the landlord. I decline to make any orders in respect of the water invoices.

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30. This claim is dismissed.

D. Should the fixed term tenancy be reduced under section 66 of the RTA?

31. The tenant has applied for reduction of the fixed-term tenancy due to end on 14 October 2025. The tenant says that the fixed term should be reduced because:

a. The landlord has acted unethically; and

b. The replacement fridge not fit for purpose.

32. The usual legal position with fixed term contracts, is that the term of the contract will be applied strictly, and it will only be in limited circumstances, that a decision maker like the Tribunal would interfere with that term. In the case of residential tenancies, one of these circumstances is found in section 66 of RTA, which allows for the reduction of fixed term tenancy agreements. That provision holds in part:

On application by a party to a fixed-term tenancy, the Tribunal may make an order reducing the term of the tenancy by a period stated in the order, and making such variations in the terms of the tenancy as are necessary because of the reduction of the term, where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced.

33. There is a high threshold that needs to be met before the Tribunal will reduce the term. In particular, the applicant will need to establish that:

a. There has been a change in his or her circumstances; and

b. That change was unforeseen; and

c. That unforeseen change will result in severe hardship to the applicant if the tenancy is not ended; and

d. The severe hardship the applicant would suffer if the term was not reduced exceeds the hardship the other party would suffer if the term was reduced.

34. Section 66(2) confirms that if the Tribunal reduces the term of the tenancy, that the Tribunal can order the tenant pay compensation to the landlord. That provision holds:

Where the Tribunal makes an order under subsection (1), the Tribunal may order that the applicant pay to the other party an amount determined by the Tribunal by way of reasonable compensation for any loss or damage to the other party which would result from the reduction in the term of the tenancy.

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Has the landlord acted unethically?

35. The tenant says the landlord has acted unethically by:

a. Presenting photographs in the pre-tenancy report which either:

i. Misrepresented the state of the premises;

ii. Were photographs that were:

a) Of the premises that were not taken shortly before the tenancy commenced but at a different time (i.e. prior to an earlier tenancy);

b) Taken of a different apartment altogether.

b. Presenting a water invoice to be paid without providing the metered charge.

36. The tenant provided the pre-tenancy report (the “landlord’s photographs”) and photographs that he took a couple of days after the tenancy started (the “tenant’s photographs”). Both parties agreed that the tenant sent the tenant’s photographs to the landlord early in the tenancy and within a period of 10 working days from the start of the tenancy.

37. [NAME] said that when they send a new tenant the pre-tenancy report, they state in a cover email or message that if the tenant disagrees with anything in the report, they should send their photographs to the landlord within 10 working days of the start of the tenancy.

38. The tenant’s photographs showed that there were some marks and scuffs that were not visible in the landlord’s photographs. However, I do not consider that the landlord’s photographs were misleading, were an attempt to mislead the tenant or that the tenant has been disadvantaged in anyway. The landlord confirmed that the tenant’s photographs are stored on the file. In future, if a dispute arises as to the condition of the premises at the start of the tenancy, the tenant will be able to refer to the tenant’s photographs.

39. [NAME] said he took the landlord’s photographs himself. He said he took them on his mobile phone via [NAME] shortly before the tenancy started. [NAME] said that the photographs uploaded to [NAME] immediately and were not stored on his mobile phone. Therefore, he was unable to prove the date the photographs were taken.

40. The tenant said that the photograph of the shower in the landlord’s photographs was of a different shower because the shower drain cover was not present in the landlord’s photographs but was present in the tenant’s photographs. The landlord acknowledged this but said it could have been because the landlord entered the premises after the photographs were taken but before the tenancy started.

41. The tenant also referred to photographs of the original refrigerator in the landlord’s photographs which showed that a light in the fridge was working. The

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tenant then referred to the tenant’s photographs of the fridge which he said shows the light was missing.

42. The landlord said that the light may have been not working but the tenant was adamant that the light was missing.

43. The tenant has the burden of proof to show that his claims are more likely than not. I am not satisfied from the evidence that the landlord misrepresented the condition of the apartment or that the photographs were taken prior to an earlier tenancy or were of a different apartment.

Has the landlord acted unethically by asking for the water invoice to be paid without providing the metered invoice from the [NAME]?

44. The water invoice issue is discussed in paragraphs 24 to 30 above. I find that the landlord did not act unethically by presenting monthly invoices for ‘estimated’ water charges. However, I consider that the landlord could have avoided this issue by communicating to the tenant at an earlier stage that the tenant was not required to pay for water until the metered invoice was provided.

Should the tenancy be ended early due to the replacement fridge being of a smaller capacity?

45. As set out above, I have found that the tenant has suffered a loss of amenity due to the replacement fridge having a reduced capacity.

46. However, I do not consider that the requirements of section 66 of the RTA have been met.

47. As set out above, there needs to be an unforeseen change in the tenant’s circumstances. “Unforeseen” means unexpected or without warning.1 An unforeseen change in circumstances includes an unexpected transfer of the tenant’s employment to another city just before the tenancy commenced,2 one of four tenants developing a sudden and serious illness and leaving the property,3 suicide of a co-tenant,4 visits from unknown persons enquiring about drugs, three burglaries at the premises,5 a landlord harassment of the tenants,6 illness and loss of employment as a doctor,7 a former partner moving nearby in breach of a

1 Bond v Tang TT Invercargill TT09/583, 25 August 2009 at [18]. 2 [NAME] v [NAME] TT Palmerston North TT431/96, 9 May 1996 at [1]. 3 [NAME] v [NAME] TT 550/00, 21 December 2000 at [4]. 4 [NAME] v [NAME] TT Dunedin TT 550/03, 30 October 2003 at [2]. 5 Abbott v Layton Holdings Ltd TT Christchurch TT09/2803, 4 August 2009 at [1], see also Astute Property Group Ltd v Lopez [2017] NZTT 4069320, single burglary. 6 Kawamura v Scott TT Wellington TT09/975, 19 October 2009. 7 Lebrer v Protheroe DC Tauranga CIV-2009-070-65, 19 October 2009 at [27].

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protection order,8 a partner leaving the relationship and the tenancy property,9 detection of a former methamphetamine laboratory,10 relocation to another city for cancer treatment,11 in earthquake cases, services cut to the tenancy property,12 substantial damage to the property,13 and a tenant’s child developing psychological problems connected with earthquakes.14

48. Changes in the condition of a property has been found not to be unforeseen change in a tenant’s circumstances, such as mould,15 flooding, sewage problems16 or the need for ordinary repairs and maintenance17 or minor repairs.18

49. In addition, the hardship must be severe, that is, more than ordinary hardship,19 rigorous, harsh, and not negligible.20

50. I do not consider that the reduction in fridge capacity amounts to an unforeseen change in the tenant’s circumstances that has or will result in a severe hardship to the tenant if the tenancy is not ended early.

51. The tenant’s application for the term of the tenancy to be reduced is dismissed.

E. Should the fixed term tenancy be terminated for misrepresentation.

52. As set out at paragraph 37 above, the tenant has not satisfied me that the landlord misrepresented the state of the premises in the pre-tenancy report. Therefore, it is not necessary for if the tenancy agreement should be terminated for misrepresentation.

53. This claim is dismissed.

F. Other matters:

54. Both parties have applied for reimbursement of the filing fee and the tenant has applied for suppression. Neither party has been wholly or substantially

8 [COMPANY] v [NAME] 09/02094/HE, 8 December 2009 at [4]. 9 Anderson v Rahiman [2010] NZTT Christchurch 5342 at [6]-[7]; Sisson v Waiheke Best Rentals & Property Management Ltd NZTT Auckland 994 at [4]-[5]. 10 Fuller v Wang [2011] NZTT Manukau 2559 at [26]. 11 Mann v Labes [2015] NZTT Invercargill 229 at [8]. 12 Flowers v Harcourts Accommodation Centre Ltd [2011] NZTT Christchurch 2793 at [13]. 13 Steventon v Kirdy [2011] NZTT Christchurch 1123 at [30]. 14 De Thierry v Braziers Property Investments Ltd [2011] NZTT Christchurch 3293 at [h] 15 Property Rental Managers Ltd v Arman TT Auckland TT09/2165, 9 June 2009 at [9]; Sommerville v Kobialko [2014] NZTT Wellington 921 at [51]-[52]. 16 Spence v Hong [2015] NZTT Auckland 788 at [22]. 17 [NAME] v [NAME] the Hedge [2014] NZTT Palmerston North 1250 a [14]. 18 Davies v Clarke [2017] NZDC 21608 at [15]. 19 Bickerton v Lott DC Wellington TT756/00, 21 December 2000 at [15]. 20 [COMPANY] v [NAME] 09/02094/HE, 8 December 2009 at [4].

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successful with their claims. For this reason, I decline to make an order for suppression or for reimbursement of the filing fee.

[NAME]

25 February 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: