Tenant ordered to pay rent arrears and compensate for damage

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[2025] NZTT 5202112, 5094397

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] to pay [COMPANY] As Agent For [NAME] $1,886.57 from the bond, calculated as shown in table below.

2. The Bond Centre is to pay the bond of $2,560.00 (5650998-003) immediately apportioned as follows:

[COMPANY] As Agent For [NAME]: $1,886.57

[NAME]: $673.43

Description Landlord Tenant Rent arrears $548.57 Electricity charges $1,200.00 Carpet $138.00 Total award $1,886.57 Bond $1,886.57 $673.43

3. All other applications are dismissed.

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Reasons:

1. Both parties attended this video hearing on 27 March 2025.

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. The tenant says that their quiet enjoyment of the premises had been breached and they seek exemplary damages.

4. The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).

5. As 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.” That means that in this case, the landlord must establish that what they are claiming is more likely than not. The tenants must establish that what they are claiming is more likely than not.

6. The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any 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.

7. The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.

8. As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that:

“ like 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.” (the emphasis is mine).

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How much is owed for rent ?

9. The tenancy ended on 28 October 2024. The landlord provided rent records which prove the amount owing at the end of the tenancy was $548.57.The tenant accepted that this was correct and the tenants are ordered to pay $548.97 to the landlord.

How much is owed for water rates?

10. The tenant is responsible for the payment of electricity charges incurred during the tenancy. Those charges do not include fixed charges. The owner of the tenanted premises lived in an adjoining house. Electricity use was noted in the main electricity meter and also in the submeter which recorded use by the tenant. The owner received invoices from the electricity supply company. The owner would then calculate the amount owing by the tenants, having reviewed the tenants’ sub meter. The tenants were then given a monthly figure to pay.

11. The tenant said that they had paid the electricity charges as advised by the landlord for the first few months. They then said that they asked the landlord for copies of the electricity invoices and proof of the sub meter reading. They say that proof was not supplied and that they were not prepared to make further payments until they received appropriate evidence of the amount owing.

12. The landlord’s evidence of the tenants’ electricity usage consisted of the invoices from the electricity company (which included usage by the landlord) and a summary of the amounts owing on a monthly basis by the tenants. No calculation of how the sums owing by the tenants was arrived it was provided.

13. The Tribunal considered the issue of a failure to correctly calculate use in Parangi v Zanitech [2021] NZTT Kaitaia 4287072. In that case there was no meter available to calculate the tenants use. The tribunal said that “the difficulty for [NAME] is that there is no meter on the tenanted premises and therefore no means to calculate the power use that is exclusively attributable to the tenants occupation of the premises.” In Geraghty v Raui [2019] NZDC 3813, the District Court held that in considering whether to require the tenant to pay for outgoings when there is no means for calculating the tenants actual consumption the tenancy tribunal must have regard to section 85 RTA”.

14. Section 85(2) RTA states;

The Tribunal shall determine each dispute according to the general principles of law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give strict effect to legal rights or obligations or legal forms or technicalities.”

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15. The landlord’s calculation of the tenants’ electricity usage offers almost no assistance to the Tribunal in assessing the tenants’ actual electricity usage. I am unable to say whether the payment required in the landlord’s calculation includes fixed charges, for which tenants are not responsible. Adopting the common sense approach, that the tenants will have used some electricity during the course of the tenancy, I assess, as best as I am able to, that the tenants electricity use for the period from June to October 2024 is $1,200.00. I have calculated this amount at $200.00 per month.

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 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.

18. 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. The landlord is insured. The landlord’s insurance policy carries an excess of $500.00.

19. 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.

20. 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.

21. 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.

22. The following damage was caused during the tenancy:

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23. The shower was damaged. The parties accepted that it had been caused by the shower caddy falling and damaging the shower unit. The landlord seeks compensation for the $500.00 insurance claim excess.

24. The tenant’s evidence was that the shower caddy had fallen down and caused the damage whilst she was not at home.

25. The landlord has proven that the damage occurred during the tenancy and that it did not result from fair wear and tear. Having proven that, the burden of proving that they did not carelessly or intentionally cause or permit the damage falls on the tenant. The tenant said that the damage had occurred essentially as a result of a fault with the shower caddy whilst they were not at the premises. I have no evidence to support any contrary proposition. I accept that the tenant has disproved liability for the damage and accordingly the claim is dismissed.

26. The landlord said that a carpet in one of the bedrooms had been stained. It was not visible at the final inspection. The landlord investigated the possibility of having the carpet cleaned, but said that this would prove expensive. The cheaper alternative was to have that piece of carpet cut out and replaced. The landlord proceeded on that basis. The cost was $138.00. The landlord said that the tenants had agreed to pay this sum.

27. The tenant said that the stain had been present at the commencement of the tenancy. They had only agreed to pay for the repairs so that they would be able to get their bond back.

28. In this issue, I prefer the evidence of the landlord. If the stain had been present at the commencement of the tenancy, I would have expected to have received evidence of that. The tenant is ordered to pay $138.00 to the landlord.

Quiet Enjoyment

29. The tenants say that the landlord has breached their quiet enjoyment of the premises.

30. A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

31. Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

32. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". [NAME] v [NAME], CIV-2009-[PHONE], DC Hamilton, 26 February 2010.

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33. The landlord lives in an adjoining premise. The landlords gas bottles are situated on the tenants’ property. The tenant said that the landlord would frequently be seen outside their house on their tenanted land. He would be checking his gas connection and Wi-Fi. No notice was given by the landlord to the tenants on these occasions. A landlord is required to give notice where they wish to enter the tenants premises.(see s.48 RTA).

34. Section 48(7) RTA states that the term “premises” does not include land or facilities. This would entitle the landlord to come onto the land as long as it was for legitimate and reasonable purposes and did not occur so often as to amount to an unreasonable breach of the tenants quiet enjoyment. The tenants evidence was that the landlord would come onto the property on at least one occasion per week. The landlord’s evidence as to the giving of notice when he needed to enter the premises was confusing.

35. I accept that the landlord was entitled to enter onto the land and did not do so on so many occasions that it would amount to a breach of the tenants quiet enjoyment. The evidence from the tenant and the landlord as to any entry into the premises was confused. The burden of proving the claim to the civil standard is on the tenants. I do not consider that the tenants’ evidence has been sufficient to prove their claim and the claim is dismissed.

36. As [COMPANY] As Agent For [NAME] has substantially succeeded with the claim I have ordered the tenants to reimburse the filing fee.

[NAME]

30 March 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: