Tenant Partially Wins Bond Recovery in Tenancy Tribunal Case

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[2025] NZTT 5034433, 5054550

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] and [NAME] to pay [NAME] $641.70 from the bond, calculated as shown in the table below:

Description Landlord Tenant Repairs $641.70 Total award $641.70 Bond $641.70 $2,158.30

2. [COMPANY] is to pay the bond of $641.70 (3050070-023) to [NAME] immediately. [COMPANY] is to pay the bond of $2,158.30 (3050070-023) to [NAME] and [NAME] immediately.

3. The landlord’s claim for compensation for damage to the carpet and the blind is dismissed.

Reasons:

1. Both parties attended the hearing which was conducted by video conference.

2. This is a cross application. The tenant has applied for refund of the bond and reimbursement of the filing fee following the end of the tenancy. The landlord

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has applied for compensation, payment from the bond and reimbursement of the filing fee.

3. The landlord had also claimed for cleaning costs. However, this claim was withdrawn at the hearing.

Relevant legal considerations: 4. The Tribunal applies the usual civil law standards and expectations.

5. One of the central expectations relates to onus of proof. With any claim before the Tribunal, it is the applicant who must establish the claim, or to put that another way, the applicant must prove the claim. If the applicant does not provide sufficient evidence and reasoning to establish the claim, then it must be dismissed.

6. The Tribunal requires the applicant to establish their claim to the balance of probabilities. That means that the applicant must show that what they are claiming is more likely than not. To put that into a mathematical context, the applicant must prove their claim to just over the 50% probability mark. Again, if the claim is not established to the balance of probability, it must be dismissed.

The landlord’s claims:

7. Sections 40(2)(a), 41 and 49B of the RTA provides that 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.

8. Section 49B(3)(a) of the RTA provides that 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).

9. Section 49B(3)(b) of the RTA provides that 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). Section 49B(3A)(a) of the RTA provides that where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.

10. Section 49B(1) of the RTA provides that 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.

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11. 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.)

12. The landlord claims that the following damage was caused during the tenancy: damage to the paintwork in four areas of the premises; damage to the carpet; and damage to the blind.

Damage to the paintwork:

13. The landlord claims there were four areas of the paintwork that was damaged during the tenancy. The tenant accepts that this damage was caused during the tenancy. The tenant says that two of the arears where caused by the removal of fastenings they had applied to the walls. The tenant says the other areas of damage were accidental.

14. The insurance excess is listed in the tenancy agreement as $400. The landlord says that he has not claimed insurance for this damage because the insurance company has advised him that as there were four separate incidents, the excess would be applied for each instance. I take judicial notice that it is standard for insurance policies to provide for an "excess per claim" meaning that a separate excess is required for each separate incident or event that results in a claim on the policy.

15. The tenants dispute the amount charged saying that it is excessive.

16. I find that the damage caused to the paintwork is more than wear and tear and that the tenant is liable for the damage. I find that the sum claimed: $641.70 (including GST) is reasonable.

17. This claim is proved

Damage to the blind and the carpet:

18. The landlord says that there was a stain on the blind and a sticky substance on the carpet and that both required cleaning. The landlord is seeking $195.50 (including GST) for carpet cleaning and $86.25 for (including GST) to clean the blind.

19. The landlord says that he had family members conduct the final inspection on his behalf and that the damage to the blind and the carpet was not noticed during that inspection. The landlord says it was only after new tenants had moved in that he became aware of this damage.

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20. The tenant says this damage was not there when they left the premises and that the individuals who conducted the final inspection on behalf of the landlord did a thorough job.

21. I note that this is the landlord’s claim and he has the burden of proof. The landlord has provided photographs of the damage. However, as this was taken after the new tenants had moved in, I do not find it helpful.

22. I am not satisfied on the basis of probabilities that the tenant did cause this damage.

23. This claim is dismissed.

The claims for reimbursement of the filing fee:

24. While each party has had some success with their claims, neither party has been wholly or substantially successful. For this reason, I decline to award reimbursement of the filing fee to either party.

[NAME]

08 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: