Tenant ordered to pay rent arrears and compensate for damages

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[2025] NZTT 5029308

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANT: [redacted] Owner

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Room 6, [ADDRESS], [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [COMPANY] As Agent For Owner $245.60 immediately, calculated as shown in table below:

Description Landlord Tenant Rent arrears to 9 September 2024 $410.00 Repairs: mirror $60.00 Repairs: wall $165.60 Replace furnishings: rubber pot plant $140.00 Replace furnishings: rice cooker $33.00 Replace furnishings: table $50.00 Exemplary damages $200.00 Filing fee reimbursement $27.00 Total award $1,085.60 Bond $840.00 Total payable by Tenant to Landlord $245.60

2. The Bond Centre is to pay the bond of $840.00 (6444609-018) to [COMPANY] As Agent For Owner immediately.

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Reasons:

1. The landlord attended the hearing. The tenant did not.

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

3. As the applicant, the landlord must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they 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.

4. As noted by the District Court in Katipo 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 of 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.

5. 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 at the hearing). I must weigh this evidence to decide what is more likely.

RENT ARREARS

6. The tenancy ended on 9 September 2024. The landlord has provided records which prove the amount of rent owing to the end of the tenancy, namely $410.00.

7. The landlord’s claim for rent arrears is granted in full for $410.00..

MISSING CHATTELS

8. At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all goods and rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 66M(b) to (e) Residential Tenancies Act 1986.

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9. The landlord claims the following chattels were missing at the end of the tenancy:

a. Rubber pot plant

b. Rice cooker

c. Wooden table

10. I deal with each item individually below.

Rubber pot plant

11. The landlord gave evidence that a rubber pot plant was present in the lounge at the beginning of the tenancy. The landlord claims the tenant took the rubber pot plant when vacating the premises.

12. The landlord submitted stills of CCTV footage showing a person they claim is the tenant holding a rubber pot plant outside the premises. The landlord gave evidence that they were able to identify the person in the CCTV footage as the tenant, because they met the tenant earlier that same day and he was wearing the same clothes as the person in the CCTV footage.

13. On the balance of probabilities, I am satisfied that the person in the CCTV stills is the tenant and that they took the rubber pot plant from the lounge when vacating the premises.

14. The landlord seeks compensation of $140.00 to replace the rubber pot plant.

15. The landlord submitted evidence of similar rubber pot plants for sale on TradeMe. The average price is around $140.00.

16. The landlord’s claim for compensation to replace the rubber pot plant is granted for $140.00.

Rice cooker

17. The landlord gave evidence that the tenant also took a rice cooker from the kitchen when vacating the premises.

18. The landlord submitted a photograph of the kitchen at the beginning of the tenancy. A rice cooker is present in the kitchen.

19. The landlord submitted stills of CCTV footage showing the rice cooker outside the premises with other belongings, which the landlord claims are the tenant’s.

20. The landlord gave evidence that the CCTV footage from which the stills are derived shows the tenant walking outside with the rice cooker and placing it alongside their belongings.

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21. On the balance of probabilities, I find that the tenant took the rice cooker from the kitchen when he vacated the premises.

22. The landlord seeks compensation of $33.00 to replace the rice cooker. The landlord did not submit a receipt or any evidence to support this valuation however, I consider it is a reasonable amount to replace a rice cooker.

23. The landlord’s claim for compensation to replace the rice cooker is granted for $33.00.

Wooden table

24. The landlord gave evidence that a small wooden table was present in the tenant’s bedroom at the beginning of the tenancy and missing at the end. The landlord submitted photographs, which show this to be the case.

25. On the balance of probabilities, I am satisfied the tenant or a person at the property with the tenant’s permission, took the small wooden table.

26. The landlord seeks compensation of $50.00 to replace the small wooden table. The landlord did not submit a receipt or evidence to support this valuation however, I consider $50.00 is reasonable considering the size and apparent quality of the table ascertained from the photographs provided.

27. The landlord’s claim for compensation to replace the small wooden table is granted for $50.00.

28. All of the amounts ordered above are proved.

29. I have taken 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.

DAMAGE

30. 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 49B, 66K(2)(a), and 66L RTA

31. The landlord claims the tenant is responsible for damaging the wall and mirror in the bedroom.

32. I deal with each issue individually below.

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Wall

33. The landlord submitted a photograph of the wall at the beginning of the tenancy. It is smooth and no holes are apparent.

34. The landlord submitted a photograph of the wall at the end of the tenancy, which show approximately 5 holes and some long screws still in the wall.

35. The landlord claims the tenant fixed a television bracket to the wall without permission and this has damaged the wall due to the number and length of screws.

36. On the balance of probabilities, I am satisfied that the tenant damaged the wall by using long screws to affix a television bracket.

37. This tenancy was only 3 months long. I consider the holes in the wall to be more than fair wear and tear, given their number, depth and the fact that screws were protruding from the wall after the bracket was removed.

38. The landlord submitted an invoice for $165.60 to repair the wall.

39. The landlord’s claim for compensation is granted for $165.60.

Mirror

40. The landlord gave evidence that a mirror was provided with the bedroom as part of the [NAME] tenancy.

41. The landlord submitted a photograph of the mirror at the beginning of the tenancy, which shows it in good condition.

42. The landlord submitted a photograph of the mirror at the end of the tenancy, which shows there is graffiti on it. The landlord gave evidence the graffitiing could not be removed.

43. On the balance of probabilities, I find that the mirror was damaged by having graffiti drawn on it during this tenancy. The damage is more than fair wear and tear, and the tenant has not disproved liability.

44. The landlord seeks compensation of $60.00 to replace the mirror. The landlord did not submit a receipt or evidence to support this valuation, but I consider it to be reasonable given the size of the mirror.

45. The landlord’s claim for compensation to replace the mirror is granted in full for $60.00.

46. All of the amounts ordered above are proved.

47. I have taken 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.

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UNLAWFUL PURPOSE

48. A tenant must not use, or permit their room to be used, for an unlawful purpose. See section 66K(2)(c) Residential Tenancies Act 1986.

49. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 66K(4)(b) and Schedule 1A Residential Tenancies Act 1986.

50. The landlord claims the tenant used their room in the [NAME] for criminal activity, namely smoking cannabis.

51. Cannabis is a Class C controlled drug under Schedule 3 of the Misuse of Drugs Act 1975. Consumption of a Class C controlled drug is a criminal offence that carries a maximum penalty of 3 months imprisonment or a fine not exceeding $500.00. See section 7(1)(a) and (2)(b) Misuse of Drugs Act 1975.

52. In support of their claim that the tenant smoked cannabis in their room in the [NAME], the landlord submitted the following evidence:

a. Photographs of a glass bong inside the tenant’s bedroom;

b. Photographs of an empty coke can that appears to have been made into a bong inside the tenant’s bedroom;

c. Photographs of leafy material resembling cannabis plant in the tenant’s bedroom; and

d. Evidence that the tenant’s room smelt like cannabis at the end of the tenancy.

53. On the basis of the evidence submitted, I find it is more likely than not that the tenant smoked cannabis in their room of the [NAME]. In doing so, the tenant used their room for an unlawful purpose and committed an unlawful act.

54. Section 109 of the RTA confirms that exemplary damages can be awarded if an unlawful act was committed intentionally, and having regard to:

a. The intent of the person committing the unlawful act.

b. The effect of the unlawful act.

c. The interests of the landlord or tenant against whom the unlawful act was

committed.

d. The public interest; and

e. Whether it is just to make the award.

55. I find that the tenant acted intentionally by smoking cannabis in their room.

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56. The landlord claims the tenant has caused the room to smell like cannabis. The landlord claims the room needs to be repainted to remove the smell and make it appealing to other tenants.

57. I consider there is a public interest in deterring tenants from smoking cannabis in their room and it is just to make an award of exemplary damages in this case.

58. The landlord only sought an order for $200.00, which they estimate is the cost to repaint the tenant’s room in the [NAME].

59. I order the tenant to pay the landlord $200.00 in exemplary damages for using their room for an unlawful purpose, namely smoking cannabis.

FILING FEE

60. Because the landlord has wholly succeeded with their claim, I must reimburse the filing fee.

61. The landlord sought to be reimbursed the filing fee for a previous mediation with the tenant, which I declined to grant.

[NAME]

13 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: