Tribunal Awards Landlord $1,237.28 for Damages from Tenant

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[2025] NZTT 5156876

TENANCY TRIBUNAL AT WELLINGTON | TE TARAIPIUNARA RETIHANGA KI TE WHANGANUI-A-TARA

APPLICANT: [redacted] [COMPANY]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] is to pay [COMPANY] As Trustees Of The [COMPANY] $1,237.28 from the bond, calculated as shown in the table below.

2. All other claims are dismissed.

3. The Bond Centre is to pay the bond of $3,200.00 (3584867-004) immediately apportioned as follows:

[COMPANY] As Trustees Of The [COMPANY]: $1,237.28

[NAME]: $1,962.72

Description Landlord Tenant Painting damaged internal walls $796.00 Replace dining chair covers $84.30 Replace damaged oven tray $102.58 Garden tidy $177.50 Cleaning $49.90 Filing fee reimbursement $27.00 Total award $1,237.28 Bond $1,237.28 $1,962.72

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Reasons:

1. Both parties attended the hearing with [NAME] representing the landlord and [NAME] representing the tenants.

2. The tenancy commenced on 25 January 2023 and ended on 6 January 2025. The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

3. The landlord has the burden to prove their claims. The standard of proof required is the usual civil standard of ‘on the balance of probabilities’. Put another way, the landlord must persuade me that what she says is more likely than not to be the case.

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

4. 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 (RTA).

5. The landlord prepared a report taking photos of the condition of the premises including the exterior grounds and gardens before the tenancy began (‘the entry report”). This report was sent to the tenants but was never signed by them. They also didn’t raise any issues or comment on the photos. After the tenancy ended, the landlord prepared an exit report with photos of the premises (“the exit report”).

Cleaning

6. I am satisfied on the evidence that there was some mould and dirt on the glass door downstairs that required further cleaning after the tenancy ended. The amount claimed for cleaning is proved.

Gardening

7. The landlord claims that areas of the garden were not tidied including weeding and removal of weed waste before the tenancy ended. [NAME] denied this claim stating that some garden areas were already in an untidy state at the start of the tenancy. She also maintained that some of the garden areas shown in the exit report were not shown in the entry report. Therefore, the condition at the start cannot be proved. The landlord seeks costs of $105 incurred to remove waste left by the tenants and a quoted cost of $250 for gardening work yet to be done.

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8. I have carefully reviewed the evidence including all photos produced by the parties. I consider that some areas of the garden required tidying at the end of the tenancy, but some gardening work is not proved. Overall, I award the landlord 50% of the cost claimed being $177.50.

Chattels

9. As part of the tenancy, the landlord provided a large number of furnishings as recorded on a chattels list prepared by the landlord. However, both parties acknowledged that once the tenants moved in there were several items that they did not want. These items were removed into a downstairs garage area and the landlord advised so that she could update the chattels list. This happened 2-3 times during the first 2 months of the tenancy. However, the tenants say that they did not receive an updated chattels list until the end of the tenancy, and they believe the list is inaccurate. The landlord confirms that she updated the list as she was told about specific items. The list provided in evidence has not been signed or initialled by the parties.

10. The landlord maintains that a green velvet chair, and a white lamp provided to the tenants were missing at the end of the tenancy. She says that she has searched the garage area and cannot find them. She believes the tenants have taken the items, perhaps accidentally when vacating. She wants them returned or compensation to replace them.

11. [NAME] denies that the tenants have the items and believe that they were moved into the garage and were to be removed from the chattels list. She also noted that next door tenants and contractors had access to the garage area where chattels were stored.

12. After careful consideration, I am not satisfied that the landlord is able to prove that the chattels list is accurate and that the alleged items remained at the premises during the tenancy. Therefore, the claim is dismissed.

Is the tenant responsible for the damage to the premises?

13. 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.

14. 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.

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15. 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.

16. 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.

17. 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.

18. Where damage is proved and the item is replaced, I must take 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 must consider the age and condition of the items at the start of the tenancy and their likely useful lifespan.

Internal walls

19. In addition to the entry report, the landlord provided evidence that the small bedroom, kitchen, lounge, and laundry were painted shortly before this tenancy started in January 2023.

20. The exit report photos showed scuff marks, drawings, dents, and scratches on two walls in bedroom 2, a laundry wall, a kitchen wall, and a lounge wall. The landlord obtained a quote of $1,322.50 to re-paint the walls and confirmed that they intended to use the contractor who provided the quote.

21. The tenant accepted liability for drawings and marks on the bedroom 2 walls caused during the tenancy.

22. The tenant disputed liability for the other walls saying that the paintwork was inferior and prone to marking because they were probably not sealed and primed. [NAME] conducted the “sellotape test” recommended by [NAME] in the small bedroom which caused paint to come off. She produced an extract from [NAME] that suggests if paint comes off doing the test, it indicates poor adhesion of the paint system.

23. [NAME] says that she and her family took good care of the house and were not careless or negligent. She denied that marks on the wall near appliances sitting on the bench were caused carelessly saying that she took care to ensure the appliances were not hard up against the wall and she cleaned the wall

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regularly. She believes the laundry wall was already scratched at the start of the tenancy. In relation to a dark mark behind the couch in the lounge, she notes that this was the landlord’s couch already placed there at the start of the tenancy, although the tenants later covered it. She also noted that the pre- tenancy photos are not close up enough to see the condition of the walls in detail. Therefore, she argues that the condition of the walls at the start is not clear.

24. After carefully considering the evidence, I accept that the walls in question were freshly painted before the tenancy started and were likely in very good condition. I am not persuaded that the paint coming off after the tenant conducted one “sellotape test” is conclusive evidence of inferior paintwork. The quote for the pre-tenancy paint work details what was done including sealing, priming, and applying two topcoats as appropriate depending on the area. In the kitchen a harder wearing paint was detailed. The contractor also noted on his quote that “I have included technical detail so that you know no corners will be cut. All fillers and other products used are premium products.”

25. I am satisfied that the wall damage in bedroom 2 and the laundry was caused carelessly by the tenants. In relation to the lounge, I accept that the landlord placed their couch against the wall before the tenancy started. While the tenant may’ve moved the couch to cover it, it was returned to its original position. It is possible that the marks were caused when the landlord placed the couch there after the wall was painted. There is no pre-tenancy close up photo to prove otherwise. Therefore, I consider that the damage was not caused carelessly or intentionally by the tenants. In relation to the kitchen wall, I accept [NAME]’s advice that the tenants took care to ensure that appliances on the bench were not hard up against the wall and she cleaned the wall regularly. A kitchen must be able to be used in the normal manner which will involve having appliances on the bench. It is to be expected that some wear and tear may occur if appliances are too near the walls. The kitchen wall mark is relatively minor, and I do not find it was caused carelessly or intentionally by the tenants.

26. The painting quote was not itemised for each room but covered 5 walls. Therefore I attribute 20% of the cost or $264.50 to each wall. Two walls required painting in the bedroom and one wall was painted in the laundry. Painted walls should last 12 years in a bedroom and 8 years in a laundry according to current depreciation guidelines. The paint work was 2 years old at the end of the tenancy. I award $440 for painting 2 walls in the small bedroom which is $529 reduced by 16.6% (2/12 years) for depreciation. I award $198 for painting the laundry wall which is $264.50 reduced by 25% (2/8 years) for depreciation.

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Other minor paint touch-ups

27. The landlord claims $356.30 to touch up small areas where paint was scuffed or peeled away from the wall as photographed and recorded in the exit report. The areas recorded as damaged are in the sunroom, lounge, small bedroom, master bedroom, kitchen, sitting room and hall. The landlord also claims $40 to paint over marks on the bathroom wall where the tenants had affixed a blind over the window. It appears that some of this damage occurred in rooms that were not freshly painted in January 2023. The painting quote shows that only the small bedroom, lounge (which may’ve included the sunroom), kitchen and laundry were painted. It does not cover the sitting room, hall, master bedroom and bathroom. The age of the paint work in these rooms is unknown and the entry inspection report does not contain close up photos to clearly show the condition of all those walls.

28. After carefully considering all the evidence, I make an allowance for some touch ups in the newly painted areas and the bathroom which I am satisfied was likely caused by the tenants carelessly given the number of marks. I award 50% of the costs claimed of $396.30 but reduce this further for depreciation by 20% on the basis that the newly painted walls were 2 years old at the end of the tenancy and should have lasted between 8-12 years. Therefore, I award $158.

External weatherboards

29. The landlord claims $173.15 to repair and paint damaged exterior weatherboards. She believes the damage was caused by the tenants’ bikes leaning against the wall. She produced a photo taken by the tenants of the bikes up against the wall when they first purchased them. The wall looks to be free of damage and marks. The landlord claims the end of tenancy photos taken of the same area show black marks on the boards at handlebar height and damage at the lower corner from pedals. The landlord provided evidence that the exterior weatherboards were freshly painted in April 2022.

30. The tenant denies causing any damage, stating that they believe what is shown in the exit photos is just dirt and grime or pre-existing damage. [NAME] notes that the bikes had cushioned handles and the pedals did not touch the weatherboards as they used kickstands. She also noted that there were [NAME] who worked outside with tools and large boards during the tenancy that might have scraped the lower corner by accident.

31. After carefully reviewing the evidence, I am not satisfied that weatherboard damage has been caused by the tenants carelessly. There is the possibility that other contractors accessing the property may have scraped the bottom boards. It appears that the tenants took reasonable care with cushioned handlebars and by using kickstands so that the bikes and peddles were not resting against the

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weatherboards. I consider that any damage caused by the tenants was likely accidental. The claim is dismissed.

Dining room chairs

32. There is no dispute that [NAME] recovered four antique dining room chairs in denim fabric without the landlord’s consent. She says that she did this because the existing upholstery was very old and worn. The landlord seeks the costs to reinstate the chairs to their original appearance. The landlord has obtained a quote for the fabric and labour totalling $562.

33. The landlord could not confirm the age of the chair upholstery. She explained that she bought the house from her elderly Aunt including the furniture. She referred to the chairs as antique and notes that they were covered in a traditional red and cream striped fabric.

34. The tenant is liable for the costs of reinstating the chairs. However, I must consider depreciation. I consider the upholstery was likely very old and worn and should be fully depreciated. However, it is reasonable to award some compensation to the landlord for the unintended replacement costs. I award $84.30 being 15% of the quoted costs, which I consider is fair and reasonable in the circumstances.

Other furnishings

35. The landlord seeks the replacement costs of several items of antique furniture that she claims were damaged carelessly by the tenants during the tenancy. The items were: marble coffee table; dining room table; nest of three tables with leather and gold insets; dining room table; leaf table; stationery cabinet; lounge suite sofa and two chairs. The landlord provided photos of the items in the exit report that show damage. The landlord believes that the tenant’s dog caused fraying and pulling of the lounge suite; and that other items were damaged by the tenants placing hot items or items such as pot plants on the furnishings without protection underneath such as placemats and trivets etc.

36. [NAME] disputes these claims. First, she points out that there are no pre- tenancy photos which adequately show the condition of these chattels close up. However, she did extract a photo of the lounge suite sofa and chairs from the entry inspection report and printed out a magnified version which shows that the fabric is fraying and worn. Furthermore, [NAME] presented photo evidence that the tenants were careful during the tenancy to protect the furniture. They covered the dining table in two cloths and used trivets and placemats. They put their own covers (double covers) over the lounge suite because they were concerned that it was worn and frayed at the start and did not want it to deteriorate further. [NAME] notes that the agent who inspected the

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premises for the landlord during the tenancy never raised any issue about the condition of the furniture and saw that items were covered by the tenants during the tenancy. [NAME] also gave evidence that overall the furniture was old and worn.

37. After carefully reviewing all the available evidence, I find that the landlord has not proved that the furnishings have been damaged beyond fair wear and tear by the tenants either carelessly or intentionally. Furthermore, I find that the tenants took reasonable precautions to protect the furnishings. Even if the damage occurred during the tenancy despite those precautions, I would find that it was accidental damage for which the tenants are not liable. For those reasons, the claims are dismissed.

Oven tray

38. The tenants accept liability for replacement of the oven tray.

Cook top

39. On 18 August 2024, the tenants reported to the landlord that the glass cook top had cracked while they were using it. They explained that it started cracking spontaneously. They had not dropped anything on top of it. The landlord approached the retailer and manufacturer for advice as to the cause. The manufacturer provided a document showing different types of damage and causes. The document states:

“If your hob has a number of cracks radiating out from a single point, this is probably due to an impact caused by a damaged or overly heavy pan. It could also be caused by a jar falling on it, as glass-on-glass impacts never have a good outcome.

Did the glass break without it being the direct and immediate result of an impact? The heat resistant glass on your hob is very strong. However, if it is subjected to an impact, it retains a memory of the incident in its structure and can produce a delayed reaction, even as much as several days later.

After you’ve cooked on it a few more times the glass will break due to the strains exerted on it by the heat…”

40. The landlord asserts that the tenant has dropped a heavy object on the cooktop carelessly and is liable for the replacement cost of $901 (which is under the landlord’s insurance excess of $1,000).

41. [NAME] is adamant that neither she nor the other occupants dropped anything on the hob. She also gave evidence that a contractor attended the premises prior to this incident to assess and measure a gap between the rangehood vent and the ceiling. The contractor then returned on 18 August 2024 (after the tenant reported the cracking) to install a connection between the vent and the ceiling. The rangehood is above the cooktop. The tenants suggest

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that the contractor may have dropped something on the hob when assessing the vent which later resulted in a crack. This is possible given the manufacturers advice that a hard impact on the cooktop may result in a delayed reaction even several days later as highlighted above.

42. Based on the available evidence, I find that the landlord has not proved that the cooktop was damaged by the tenants acting carelessly or intentionally. Therefore the claim is dismissed.

43. As the landlord has succeeded with several claims, they are entitled to reimbursement of the filing fee.

[NAME]

23 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 [NAME] ma runga [PHONE] ranei.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].

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/

Reasons: