Tenant ordered to pay $10,166.76 for rent arrears and damages

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[2025] NZTT 5191112, 5223553

TENANCY TRIBUNAL AT DUNEDIN | TE TARAIPIUNARA RETIHANGA KI ŌTEPOTI

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] and [NAME] must pay [COMPANY] $10,166.76 immediately, calculated as shown in table below.

2. [COMPANY] is to pay the bond of $5,670.00 (3030594-025) to [COMPANY] immediately.

3. The application by [NAME] and [NAME] for compensation of $31,500.00 and exemplary damages is dismissed.

Description Landlord Tenant Rent arrears to 29/12/2024 $210.00 Cleaning $2,255.59 Carpet Cleaning $1,130.00 Key replacement $190.91 Window repairs $265.15 Painting & rubbish removal $8,452.50 Plumber re unblocking toilet $167.61 Dishwasher repairs $174.00

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Replace kitchen vinyl $2,964.00 Filing fee reimbursement $27.00 Total award $15,836.76 Bond $5,670.00 Total payable by Tenant to Landlord $10,166.76

Reasons:

1. The landlord and eight tenants attended the hearing, one of the tenants by telephone for a short period of time.

2. The landlord has applied for rent arrears, compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

3. The tenants have crossed applied for the landlord’s application to be struck out, refund of the bond, compensation by way of a rent refund of $31,500.00, and exemplary damages for breach of section 49D.

4. In addition, the tenants wanted any liability to be apportioned equally rather than jointly and severally.

5. The tenancy was for a fixed term from 8/1/2024 to 29/12/2024 at $1,890.00 rent per week.

Landlord’s claim

How much is owed for rent?

6. The tenancy ended on 29/12/2024. The landlord sought rent arrears of $210.00 and provided rent records from the beginning of the tenancy in support of the claim.

7. The tenants disputed they owed any rent arrears but provided no evidence in the form of payments or bank account statements to support their position.

8. I am satisfied from the evidence that it is more likely than not that the tenants owed the amount of arrears claimed and an order has been made accordingly.

Did the tenants comply with their obligations at the end of the tenancy?

9. At the end of the tenancy the 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. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenants are required to replace worn out smoke alarm

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batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986.

10. The landlord claimed compensation of $3,744.11 as follows:

a. $2,255.59 for cleaning,

b. $1,130.00 for carpet cleaning,

c. $190.91 for replacement keys,

d. $167.61 plumbing work for a blocked toilet.

11. In support of the claims the landlord provided invoices, entry and exit inspection reports with photographs dated 2/2/2024 and 20/12/2024 respectively, photographs dated from an inspection on 6/8/2024, two 14 day notices dated 1/3/ and 26/6/2024, correspondence between the parties and two witnesses.

12. The landlord also provided various invoices of the work undertaken on the premises, cleaning, carpet cleaning and outside rubbish removal, before the tenancy began and prior to the tenants moving in.

13. On the other hand, the tenants disputed the premises were not left reasonably clean and tidy and gave evidence about what cleaning they did.

14. Further the tenants confirmed that although some rubbish had been removed, larger items in particular had been left.

15. The tenant who joined the hearing briefly by telephone was the last tenant to visit the premises and gave evidence about what he did then, which was to pick up gear outside the property. He confirmed that he had ignored the landlord’s request for a walk thought inspection.

16. The tenants also provided videos taken by third parties on 18/1/2024 showing bottles in the outside courtyard and on 9/12/2024 showing outside scaffolding having been erected.

17. I am persuaded by the evidence of the landlord that the tenants did not leave the premises reasonably clean and tidy, did not remove a significant amount of rubbish, the carpets needed extensive cleaning to remove stains and plumbing work was needed to unblock a toilet due to rubbish accumulating in the outlet pipe.

18. In particular I found the evidence of one of the cleaners who described the cleaning needed in the kitchen, bathrooms, and bedrooms, very compelling.

19. The tenants agreed they did not return all the keys but were unhappy because they believed they only been given one front door key.

20. I consider the amounts claimed are reasonable and proved.

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Are the tenants responsible for the damage to the premises?

21. 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 tenants 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.

22. The landlord claimed compensation of $11,855.65 as follows:

a. $8,452.50 for internal painting and rubbish removal,

b. $2,964.00 for replacement of kitchen vinyl,

c. $265.15 for repairs to a bedroom window,

d. $174.00 for dishwasher repairs.

23. In support of the claims the landlord provided further invoices, photographs and a timeline of events and communications.

24. The landlord submitted that the damage was extensive and intentional because it continued throughout the tenancy despite his communications with the tenants, including the breach notices.

25. No insurance claims had been made for the damage because the landlord suggested that the [COMPANY] would have treated each claim separately and apply the $1,000.00 excess.

26. In response, the tenants denied responsibility for any of the damage and suggested the cause was wear and tear.

27. However, the tenants did concede that some damage may have been careless as when the kitchen vinyl was burnt when a burning fry pan dropped on the floor, or when drink was spilt on the carpets.

28. 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.

29. 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.

30. 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.

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31. 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.

32. 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.

33. I am satisfied from the extensive evidence provided by the landlord that intentional continuous damage was caused during the tenancy to walls, a window, the kitchen vinyl, carpets, and dishwasher hose.

34. The damage is more than fair wear and tear.

35. The evidence of the [NAME] about the amount of rotten food in the kitchen and rubbish, including food behind the dishwasher suggests a reasonable cause for the presence of rodents which damaged the dishwasher hose.

36. As the landlord has reduced the account for painting and cleaned rather than replaced the carpets, I have not needed to take betterment and depreciation into any account further.

37. 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.

38. The amounts claimed have been proved.

Did the tenants removed or interfere with the smoke alarms?

39. The landlord submitted that the tenants had removed the smoke alarm between bedrooms 7 and 8 between the inspection on 6/8/ and the final inspection on 20/12/2024.

40. Further as two other smoke alarms had been replaced at the request of the tenants during the tenancy the landlord believed these had also been removed.

41. The landlord provided a receipt for two new smoke alarms purchased at the beginning of the tenancy.

42. The landlord sought exemplary damages of at least $3,000.00 for what they considered was a pattern of behaviour in removing the alarms, the award to go to a [NAME].

43. On the other hand, the tenants denied removing the alarms, rather they suggested these fell down after they were replaced and did not work.

44. A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See

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section 40(2)(ab) Residential Tenancies Act 1986. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.

45. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A Residential Tenancies Act 1986.

46. I find the tenants have committed an unlawful act by removing at least one smoke alarm during the tenancy without advising the landlord.

Should exemplary damages be awarded against the tenants?

47. As I have found the tenants committed an unlawful act by removing a smoke alarm I must consider the issue of exemplary damages.

48. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

49. Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v [COMPANY] (HC CIV 2010-412-134).

50. In making an award of exemplary damages I need to consider the four matters set out in section 109(3).

51. First, I need to consider the intent of the tenants.

52. For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.

53. I consider there is more than sufficient evidence to find that the tenants intentionally removed at least one smoke alarm, and for whatever reason failed to advise the landlord that the alarm was no longer working.

54. The provision of smoke alarms in rental properties is an important and fundamental safeguard to warn tenants about the danger of fire.

55. The Tribunal takes very seriously any omission by a landlord in not providing smoke alarms and treats the removal of smoke alarms by tenants the same way.

56. The amendments to the legislation in 2010 introduced exemplary damages to a maximum of $4,000.00 for interference with or rendering inoperative smoke alarms.

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57.

58. If there are insufficient smoke alarms tenants are deprived of early warning devices designed to indicate the likely presence of fire thus lessening their chances of early detection and opportunity for escape.

59. In addition, removal of smoke alarms may void a landlord's insurance which could lead to significant financial consequences for both the landlord and tenants should the property be damaged by fire.

60. However, having considered the factors set out in section 109(3), particularly the fact that the effect on the landlord was negligible, I consider it is not just to award exemplary damages in this instance.

61. This is because only one alarm was removed towards the end of the tenancy and the tenants believed the alarm was faulty.

Tenants’ Claim

Should the landlord’s claim be struck out?

62. The tenants submitted that [COMPANY] had no “legal standing” to bring the claim to the Tribunal because the “real landlord was [COMPANY]”.

63. Relying on the definition of landlord in section 2 the tenants suggested that [COMPANY] should have lodged the application but had not done so because the Company and its directors were “hiding” behind [COMPANY] as their agent.

64. Section 2(1)(e) provides that a landlord in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of the premises and includes an agent of the landlord.

65. Where an agent enters the contract in their own name without qualification the agent will generally be personally liable unless a contrary intention is plain from the contract, see Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 (PC). In such a situation the doctrine of undisclosed principal becomes relevant, see [COMPANY] v St Stephens College Board of Governors [1991] 3 NZLR 304 (HC).

66. The application to strike out the proceedings fails.

67. I consider that [COMPANY] has standing to make the application on behalf of [COMPANY] and is not required to disclose the agency because

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they entered into the tenancy agreement in their own name and for the purposes of the Act are the landlord.

68. The Tribunal has jurisdiction to hear the landlord’s application.

Are the tenants entitled to compensation and or exemplary damages?

69. The tenants sought a refund of rent of $31,500 and exemplary damages and provided extensive submissions about why they believed the rent was above market rent, the premises were poorly maintained and run down.

70. In effect the tenants considered as “naïve” 18 year olds they had been taken advantage of by the landlord “extracting maximum rent” while not delivering a “compliant house”.

71. The tenants submitted they did not think there were any outstanding issues with the tenancy when they vacated, and no “walk through” joint inspection had been arranged with them.

72. Rather they believed that the landlord had agreed to refund the bond to them following an email on 12/12/2024.

73. Further the tenants were unhappy that it took until February 2025 for the landlord to deliver “vague” invoices for what they believed were “long overdue refurbishment work”, which they considered had been undertaken while they still paid rent.

74. The submissions canvassed several sections of the Act, including section 25 (market rent), section 48 (landlord’s right of entry) and sections 49A to 49E (responsibility for damage).

75. I find the tenants claim for compensation and exemplary damages fails.

76. Although the submissions were extensive, they were not necessarily helpful on the key points the Tribunal must determine, and lacked objective, persuasive, detailed supporting evidence.

77. With respect to section 25 the tenants’ application was out of time.

78. The Tenancy Tribunal is a civil jurisdiction, and the onus of proving the matters claimed rests with the person making the claim.

79. The standard of proof is on the balance of probabilities.

80. I consider the tenants have failed to prove their claims to the required standard.

81. While denying any liability for arrears or compensation, if an order was made the tenants wanted their liability to be several.

82. The tenants all signed the tenancy agreement as joint tenants.

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83. It is well settled law that in such circumstances tenants are jointly and severally liable as between themselves and the landlord for any amount awarded.

84. However, if the tenants have a dispute between themselves as to who owes any amount awarded then they can pursue this in the Disputes Tribunal.

85. The Tenancy Tribunal only has jurisdiction between landlords and tenants, not tenants and tenants.

86. As [COMPANY] has wholly succeeded with the claim I must reimburse the filing fee.

87. The landlord did not ask for suppression.

88. No suppression is available to the tenants because they were unsuccessful with their claims.

[NAME]

07 May 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: