Tenant Ordered to Pay $428.20 for Damages - Tenancy Tribunal Decision

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[2025] NZTT 5183559

TENANCY TRIBUNAL AT MANUKAU | TE TARAIPIUNARA RETIHANGA KI MANUKAU

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

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

ORDER

1. [NAME] (formerly [NAME]) to pay [COMPANY] $428.20 from the bond, calculated as shown in the table below.

2. The remainder of the landlord claims are dismissed.

3. The Bond Centre is to pay the bond of $1,020.00 (5373660-005) immediately apportioned as follows:

[COMPANY]: $428.20

[NAME] (formerly [NAME]): $591.80

Description Landlord Tenant Rent arrears to 1/02/2025 $96.20 Repairs: Tiles $140.00 Rubbish removal $192.00 Total award $428.20 Bond $428.20 $591.80

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Reasons:

1. Both parties attended the hearing.

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

3. These premises are over 30 years old and comprise of a 2-bedroom unit in a block of 5 brick units.

4. This was a longstanding tenancy.

5. In July 2013 the tenant moved into the premises with her husband and children. The tenancy agreement was in the name of her husband. On 1 February 2014 the tenant entered into a tenancy agreement in her name for the premises and continued to live in the unit with her two children.

6. The tenancy ended on 1 February 2025.

Burden of proof

7. In general, the onus, or burden, of proving a particular claim rests with the party who is making that claim (in this case the Landlord). The standard of proof, or level of evidence, required is “on the balance of probabilities”. In other words, the party proving the claim must establish with evidence that their claim is “more probable than not” or “more likely than not”. In the case of damage claims entry and exit inspection reports, invoices, corroborating documents and photographs are an important part of discharging this burden of proof.

8. The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in [NAME]. Judge Mather stated:“…[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”

9. For the sake of brevity, I have not referred to all of the evidence in this decision, however, the parties can be assured that I have carefully considered all of the evidence filed.

How much is owed for rent?

10. The landlord provided rent records which prove the amount owing at the end of the tenancy. The tenant agreed with the amount owing for rent.

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

11. At the end of the tenancy the tenant 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.

12. The landlord claimed that the premises were left mostly clean but that the tenant did not leave the windows clean. As no photographs or cleaning invoice were provided this claim is not proved to the required standard.

13. The landlord claimed that the tenant left rubbish at the premises in the storage room and in the garden. The tenant agreed that some garden rubbish was left but disputed that she was responsible for the wood pile. The tenant also disputed leaving tyres in the storage shed and claimed that the mattress left at the front of the premises belonged to another unit. Both parties provided photographs.

14. The landlord seeks the sum of $260 for the bin hireage plus four hours of her labour to fill the bin at a rate of $31.00 per hour. The total claimed is $384.00.

15. Having carefully considered the evidence and the photographs I am satisfied that the landlord has proved that the tenant did not remove garden rubbish at the end of the tenancy. The landlord photographs show there is also construction rubbish in the bin and do not include any photographs of rubbish in the storage shed. As there are five units on the property, I find that the landlord has failed to prove that all of the rubbish was directly attributable to this tenant. The landlord stated that half of the bin was filled with the garden rubbish. Therefore, I order the tenant to pay half of the cost of rubbish removal being $192.00.

Is the tenant responsible for the damage to the premises?

16. 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. See sections 40(2)(a), 41 and 49B RTA.

17. 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.

18. 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

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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.

19. 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.

20. 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.

21. In considering compensation the Tribunal takes into account 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 depreciation, I take into account the age and condition of the items and their likely useful lifespan.

22. The landlord claimed that damage was caused during the tenancy. I will consider each claim in turn.

23. Damage to fireplace tiles.

(a)The landlord claimed that there was damage to the tiles on the fireplace hearth during the tenancy. The landlord provided a photograph of the hearth taken in April 2013 which is three months before the tenant moved into the premises and nine months before her tenancy commenced. The tile work is dated but in good condition. The landlord claimed that the tiles remained in good condition at the beginning of this tenancy. There is no mention in the entry inspection of any existing damage to the tiles.

(b)The landlord provided a photograph of the fireplace at the end of the tenancy showing a dent in the chimney and tiles missing and some broken. The landlord stated that the tenant disposed of the missing tiles so they could not be reinstalled. The tenant disputed this and stated that a contractor removed them but in either event the tiles were not there at the end of the tenancy.

(c)The landlord claimed the sum of $350.00 for tile replacement.

(d)The tenant stated that her children may have caused the dent in the chimney but claimed that any damage to the tiles was wear and tear. She also stated that the fire was not used during the tenancy.

(e)Having carefully considered the evidence of both parties I am satisfied that the landlord has proved on the balance of probabilities that the tiles were damaged during the tenancy and that as the tiles are missing the damage is beyond fair wear and tear.

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(f)The Tribunal considers tiles to have a lifespan of 50 years. As these premises are over 30 years old the amount to replace the tiles is depreciated by 60 percent and the tenant is ordered to pay $140.00 towards the replacement.

24. Damage to walls and doors.

(a)The landlord claimed that the tenant damaged doors and walls throughout the premises. The landlord provided photographs of the main bedroom door and photographs of walls in the living area and hallway showing scuff marks and peeling wallpaper. The landlord advised that the wallpaper had been painted over and estimated that the painting was last done at least twelve years ago.

(b)The tenant claimed that any damage was wear and tear.

(c)The entry inspection report provided by the landlord records holes in the bedroom door at the start of the tenancy.

(d)Having considered the evidence I find that the landlord has failed to prove this claim to the required standard as the entry inspection report records existing door damage and the damage to the walls is fair wear and tear for an eleven year tenancy. In any event the paintwork has passed its likely useful lifespan for a tenancy.

25. Damage to carpet.

(a)The landlord claimed that the tenant damaged the lounge carpet during the tenancy and sought the cost of replacing the carpet. The landlord provided a photograph taken in April 2013 well before this tenancy started which showed considerable staining on the lounge carpet. The entry inspection report records “stains on the carpet” in the lounge.

(b)The landlord advised that the carpet was three years old before the tenancy commenced and is therefore now 14 years old. The exit photographs show the carpet to be stained and separated at some joins, however, having regard to the age and condition of the carpet at the commencement of the tenancy and the length of the tenancy I am not satisfied that the landlord has proved this claim on the balance of probabilities.

26. Light fittings.

(a)The landlord claimed that the tenant damaged two wall light fittings in the main bedroom and two light shades in the lounge/dining area.

(b)The landlord provided an undated photograph of the bedroom which she stated was taken before the tenancy commenced. The tenant claimed this was taken prior to her husband’s tenancy commencing.

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(c)The tenant stated that she could not recall whether there were light shades in the bedroom and claimed that the damage to the lounge lights was due to the shades rusting, this was supported by the landlord’s photographs.

(d)The landlord advised that the light fittings were 30 years old. The Tribunal attributes a useful life span of 10 years to light fittings in tenancies. As the light fittings are three times this age I find that they are completely depreciated and the damage is fair wear and tear.

27. Curtains.

(a)The landlord sought $200 to replace the curtains. The landlord provided a before photograph taken in April 2013 months prior to this tenancy commencing. The curtains were yellow. The landlord stated that these curtains were replaced during the tenancy with black curtains but could not recall when. The landlord produced a photograph of one worn black curtain. The tenant stated that the curtains were never yellow when she was in the tenancy and claimed the black curtains were installed before her tenancy started 11 years ago. As there are no entry photographs taken at the beginning of this tenancy, I am not satisfied that the landlord has proved the age and condition of the curtains at the beginning of the tenancy and whether the tenant is responsible for damage beyond fair wear and tear. Therefore, the claim is dismissed for lack of evidence.

28. [COMPANY] has not substantially succeeded with the claim I have not reimbursed the filing fee.

[NAME]

09 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: