Tribunal Rejects Claims Over Water and Power Usage Charges

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[2025] NZTT 5006471

TENANCY TRIBUNAL - Auckland | Tāmaki Makaurau

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The [COMPANY] is to pay the bond of $1,240.00 (3577757-010) to [NAME] immediately.

Description Landlord Tenant Total award Bond $1,240.00

Reasons:

1. Both parties attended the hearing.

2. The tenant claims the landlord owes them $328.50 for overpaid outgoings. The tenant also claims the landlord breached their obligations during the tenancy and seeks compensation, and a refund of the bond.

3. The landlord claims the tenant owes them $1,128.33 for outgoings.

4. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. This means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” This means that they must establish that what they are claiming is more likely than not. This

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is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

5. 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.

6. 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.

OUTGOINGS

7. Section 39(3) Residential Tenancies Act 1986 (RTA) states:

The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.

8. The tenancy address is a granny flat that the landlord built to house his late mother in her elderly years. It is located on the same piece of land as the landlord’s main residence.

9. There is a main water and power meter, which are connected to the landlord’s residence. The tenancy address has a check meter for water and power.

10. The landlord completed check meter readings for water and power at the tenancy address at the beginning and end of the tenancy. Monthly checks were not completed.

11. The parties agree that the check meter readings at the beginning and end of the tenancy were as follows:

Water

a. Beginning of tenancy: 34019911

b. End of tenancy: 35292931

Total usage: 127.3 kilolitres

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Power

c. Beginning of tenancy: 62741

d. End of tenancy: 66442

Total usage: 3701 kilowatts

12. During the tenancy, the tenant paid the landlord $100.00 per month towards water and power. It was agreed that this would be credited towards the invoice issued to the tenant at the end of the tenancy for water and power usage. In total, the tenant paid the landlord $1,500.00.

13. The parties disagree upon the amount the tenant is liable to pay for power and water consumed during the tenancy.

14. I discuss water first and power second.

Water

15. The parties agree that the tenant consumed 127.3 kilolitres of water during the tenancy.

16. The landlord claims this equates to $797.04 of water and wastewater consumed by the tenant. The landlord gave evidence that they reached this figure by applying the kilolitre charge for water and wastewater as recorded on one invoice issued by [NAME]. The landlord did not submit a copy of this invoice, but estimated it was issued in August or September 2024.

17. The landlord did not submit copies of any of the monthly invoices from [NAME] that were issued during the tenancy.

18. The landlord claims that the applicable water usage charge on the invoice was $2.142 and wastewater charge was $3.72. This equates to a total of $272.67 for water and $369.37 for wastewater. The landlord claims that [NAME] determines wastewater usage as being 78% of the total water usage and this is what he has done. The landlord summarised their calculations as follows:

Water

12 June 2023 METER READING 34019911

15 Sept 2024 “ “ 3529231

WATER USAGE….. 127.3Kl @ $2.142……$272.67

WASTE WATER@78%..99.29Kl @ $3.72……..$369.37

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19. To the above figures, the landlord added half the total cost of the annual fixed wastewater fee charged by [NAME]. The annual fee is $310.00. The landlord determined the tenant’s liability to be $155.00.

20. The tenant claims the landlord’s calculations are incorrect for two reasons. First, the landlord has used the kilolitre rate provided in one invoice issued by [NAME] in late 2024 to determine the tenant’s liability for water usage throughout the entire tenancy. The tenant claims that the monthly kilolitre rate charged by [NAME] has changed over the course of the tenancy. Secondly, the landlord’s invoice includes a portion of the fixed wastewater fee, which the tenant claims they are not liable to pay.

21. The tenant claims that their water usage amounts to a total of $597.95, comprising $253.70 for water and $344.25 for wastewater. The tenant provided their own table, which they say shows the correct calculations.

22. I find that neither party has proven their claim to the required standard.

23. The landlord’s claim for outstanding water rates includes half the cost of the annual fixed wastewater fee charged by [NAME]. A tenant is not liable to pay fixed water charges. This is because these fees are payable regardless of the tenant’s occupation.1

24. The landlord did not provide copies of any invoices issued by [NAME] during the tenancy. In the absence of original, monthly invoices from [NAME] issued throughout the tenancy, I am uncertain whether the water and wastewater rates applied by the landlord are correct.

25. The Tribunal sees many cases where a landlord seeks outstanding water rates for a granny flat situated on the same piece of land as the landlord’s main residence. To prove their claim, the Tribunal usually requires the landlord to submit evidence in the form of monthly check meter readings of the granny flat, monthly invoices issued by [NAME] and a separate invoice showing the relevant calculations provided by the landlord to the tenant. No such evidence was presented by the landlord in this case.

26. The landlord claims that the tenant previously offered to settle the dispute regarding outstanding water rates and power by paying the landlord $763.62. Negotiations between the parties failed and that is why they have come to the Tribunal. Any previous offer by the tenant to settle the matter does not help the landlord to prove their claim that the tenant owes $797.04 in outstanding water rates.

1 Furniss v Cochrane [2015] NZTT Waitakere 1038 at [17].

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27. The tenant’s claim fails for similar reasons. The tenant provided a table showing their calculations for water used by them during the tenancy. I found it difficult to interpret the table and the tenant did not submit any original invoices from [NAME] to support their claim. The tenant requested to submit copies of monthly invoices during the hearing however, I declined to receive this evidence at such short notice.

28. Both parties’ claims in respect of water rates are dismissed.

Power

29. The parties agree that the tenant used 3701 kilowatts of power during the tenancy.

30. The landlord claims this equates to $1,831.29 in power. The landlord gave evidence that they reached this figure by applying the standard daily rate for power as recorded in one power invoice issued by [NAME] for the month 28 May 2024 – 24 June 2024. A copy of this invoice was submitted to the Tribunal.

31. The invoice records two different standard daily rates. The landlord has applied the lowest, which is $2.26 per kilowatt. The landlord multiplied the tenant’s usage of 3701 kilowatts by $2.26, which gives a total of $836.79. To this figure, the landlord added the total fixed daily line charge for the tenancy. The fixed daily line charge recorded in the invoice form [NAME] is $2.21. The tenancy was 450 days long. Therefore, the landlord determined the total fixed daily line charge to be $994.50.

32. The landlord gave evidence that they own an electric vehicle (EV) and therefore receive very competitive power rates, which they claim the tenant benefitted from. The landlord also gave evidence that the rate for power charged to the tenant was lower than his previous tenancy.

33. The tenant disputes the landlord’s calculations for two reasons. First, the tenant claims that the standard daily rate for power is higher than the standard nightly rate. Secondly, the tenant claims that they are not liable to pay the fixed daily line charge.

34. The tenant submitted a table showing their calculations for power usage during the tenancy. The tenant claims that they only used $573.54 worth of power during the tenancy.

35. I find that neither party has proven their claim on the balance of probabilities.

36. The invoice submitted by the landlord confirms that the standard daily rate for power charged by [NAME] is higher than the standard nightly rate. On the invoice provided, the lowest standard daily rate is $2.26 per kilowatt and the lowest standard night rate is $11.30 per kilowatt. The invoice provided shows the total power used during the day and night, and provides respective totals due. In

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contrast, the landlord has applied a flat rate to determine the tenant’s usage throughout the tenancy, which is not accurate.

37. The landlord’s claim for outstanding power also includes the full fixed daily rate. The main power meter is connected to the landlord’s residence, not the tenancy address. A tenant is only liable for fixed charges for electricity incurred when electricity is connected and related directly to the tenant’s occupation of the premises.2

38. The landlord has not submitted copies of the original power invoices issued throughout the tenancy. Therefore, I am uncertain whether the rate applied by the landlord based on the invoice dated 28 May 2024 – 24 June 2024 was the same throughout the whole tenancy.

39. The Tribunal sees many applications for outstanding power from landlords where a tenant occupies a granny flat attached to the landlord’s main residence. The Tribunal usually requires the landlord to submit evidence in the form of monthly check meter readings for the granny flat, monthly invoices issued by the power company and a separate invoice showing the relevant calculations provided by the landlord to the tenant. No such evidence has been submitted in this case.

40. The tenant’s claim also fails because no original invoices from the power company were provided to support the calculations in the tenant’s table.

41. Both parties’ claims in respect of power are dismissed.

UNLAWFUL ENTRY

42. Section 48(1) RTA states:

The landlord shall not enter the premises during the currency of the tenancy agreement, except –

(a) With the consent of the tenant freely given at, or immediately before, the time of entry; or

(b) In any of the circumstances descried in subsections (2) to (3).

43. Section 48(7) states that “premises” does not include land or facilities.

44. The tenant claims that the landlord breached section 48 RTA by coming into the lawn/garden area of the tenancy address without the tenant’s consent.

45. The landlord accepts that they went into the tenant’s lawn/garden area to complete maintenance but claims they always sought the tenant’s permission first.

2 Smits v Marsden [2014] [NAME] 903 at [61] – [68].

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46. The tenant’s claim relates to entry by the landlord into the lawn/garden area of the tenancy address, not the dwellinghouse. Section 48(7) RTA makes it clear section 48 RTA does not apply to land or facilities. Therefore, irrespective of whether the landlord had the consent of the tenant or not, there is no breach of section 48 if the landlord only entered the garden/lawn area.

47. The tenant’s claim that the landlord unlawfully entered the premises is dismissed.

QUIET ENJOYMENT

48. Section 38 RTA states:

(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord.

(2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.

49. In this context, “quiet” means peaceful, not merely free from noise, and “enjoyment” means the right to full use and benefit of the tenancy property.3

50. Although section 38(2) states that the landlord must not cause interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It follows that temporary discomfort or inconvenience does not constitute a basis for breach of section 38 RTA. There are several circumstances where the landlord’s rights (such as to carry out maintenance or renovations) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure. The landlord is entitled to carry out maintenance, but those actions can quickly breach reasonable peace, comfort and privacy if they are not well managed.

51. The District Court has held in Lucas v Paterson [2005] DCR 76 that where landlords are renovating property, tenants are required to put up with a degree of noise and general nuisance without compensation, with the judge commenting:

Were every landlord who embarked on renovations to be in immediate jeopardy of quiet enjoyment breach, we would have an unworkable state of affairs. Proportionality must not be forgotten.

3 Residential Tenancy Law in [NAME] (2018).

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52. However, there are cases in contrast to [NAME] where construction activity on or adjacent to premises has given rise to a breach. In [NAME] v Wellington City Council DC, Wellington, CIV-2013-085-660, 23 September 2013, it was considered relevant in determining what was reasonable that the tenants had prior knowledge of the work that was going to take place.

53. In summary, whether the interference complained of breaches the quiet enjoyment covenant is a question of reasonableness, having regard to all the circumstances, including prior knowledge of the work being carried out, and the length and degree of intrusion.

54. The tenant claims the landlord breached their quiet enjoyment by:

a. Entering the lawn/garden area of the tenancy address without the tenant’s permission; and

b. Burning rubbish at the landlord’s address.

55. I deal with each issue in turn below.

Entering the lawn/garden area of the tenancy address without the tenant’s permission

56. The tenant gave evidence that when they first moved into the property the garden was under construction. The tenant claims the landlord told them that they would fix the garden, which the tenant was happy about.

57. The tenant gave evidence that the landlord came and went from the garden a lot. The tenant claims that initially, the landlord would text them beforehand to get permission to enter the garden, but this stopped after some time. The tenant claims that the landlord often entered the garden without seeking the tenant’s permission first.

58. The tenant gave evidence that they did not raise any concerns with the landlord about the frequent visits to the garden, because the tenancy had only just started and they did not want the relationship to get off to a bad start.

59. The tenant gave evidence that their partner lived at the address with them. The tenant claims he and his partner felt their privacy was infringed by the numerous visits of the landlord to the garden. The tenant gave evidence that the landlord could see directly into the property through windows from the garden.

60. The landlord gave evidence that he told the tenant at the beginning of the tenancy that the garden needed work. The landlord gave evidence that the garden fence needed to be reinstated and this took longer than expected, because it was being pushed over by a bamboo plant.

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61. The landlord accepts that they came and went from the tenant’s garden but gave evidence that they always sought permission form the tenant first. The landlord submitted a copy of a text message sent to the tenant stating:

I was planning to have another attack on the bamboo in your yard. Is that convenient for you?

[Tenant’s reply]

Yeah that’s all good.

62. The landlord gave evidence that they always checked with the tenant before using loud machinery such as a chainsaw to ensure it was ok. The tenant accepted this.

63. No evidence was given as to the number of times the landlord visited the garden or how long the garden maintenance took.

64. On the balance of probabilities, I am not convinced that the landlord breached the tenant’s right to quiet enjoyment for the following reasons:

a. The tenant had prior notice of the fact that the garden required maintenance and that the landlord would be undertaking the relevant work.

b. The tenant never raised their concerns with the landlord. I have considered the tenant’s explanation for this but consider that if the effect was as bad as the tenant claims, they would have raised this with the landlord.

c. The landlord claims they always sought permission from the tenant before entering the garden. The tenant disagrees with this but accepts that the landlord sought their permission at the beginning. Both parties accept that the landlord forewarned the tenant of any intention to use loud machinery and checked whether this was ok beforehand. I am satisfied that there was an effort by the landlord to manage the impact on the tenant that the garden maintenance would have.

65. For the above reasons I am not convinced on the balance of probabilities that the interference complained of breached the tenant’s quiet enjoyment.

Landlord burning rubbish at the landlord’s address

66. The tenant claims that on at least three occasions the landlord burnt rubbish in their backyard and smoke blew over to the tenancy address. The tenant gave evidence that when this occurred in summer it was a nuisance, because they would often have the windows to the property open and smoke would come into the house. The tenant claims that on one occasion they had washing drying on the line, which was ruined because of the smoke. The tenant also gave evidence that the fire department was called once.

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67. The landlord accepts that they burnt garden waste in an incinerator in their garden from time to time. The landlord gave evidence that they always ensured the wind was blowing in an easterly direction to avoid smoke going into the tenant’s property. The landlord accepts that on one occasion the wind changed direction and blew smoke in the tenant’s direction, but denies that this occurred any other time.

68. The landlord claims that they have been burning garden waste outside in an incinerator for some time and have never had any issues with previous tenants or neighbours. The landlord submitted a positive reference from a previous tenant, which states:

I was a Tenant of [NAME]’s for 3 years from March 2018…As far as I’m concerned [NAME] was a extremely good and fair landlord, who didn’t bother me (even though he lived next door) he never came into my home without being asked and was quick to fix problems…

69. The tenant submitted copies of messages he sent to his partner over Facebook when the landlord was burning rubbish. These messages read:

01/09/23

[NAME] is burning a load of garden waste. Really smokey. I reported him to the council haha

20/10/23

[NAME] is burning stuff again

29/02/24

[NAME] is burning stuff again

Sucks to the neighbour because the wind is blowing it directly into their house

Someone called the fire brigade

70. I find that on 1 September 2023 the landlord burnt garden waste at the back of their property and smoke blew over to the tenancy address. I am uncertain whether this occurred on the other two occasions mentioned by the tenant. The tenant claims it did, but the landlord claims it did not. The message sent by the tenant to his partner on 29/02/2024 states that the smoke was blowing directly into the neighbour’s house, not his. The tenant only mentioned the presence of smoke at the property in the message sent to his partner on 1 September 2023

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and not in any of the other messages. The tenant did not submit photographs or videos of the smoke or call their partner or any neighbours as witnesses to support their claim.

71. In all of the circumstances, I am uncertain whether the landlord caused smoke to blow over to the tenancy address on three occasions. I am satisfied on the balance of probabilities that this happened once on 1 September 2023, but I do not consider one instance is sufficient to constitute a breach of the tenant’s quiet enjoyment.

72. The tenant’s claim is dismissed.

FAILURE TO MAINTAIN

73. Section 45(1)(b) RTA states:

A landlord shall provide and maintain the premises in a reasonable state of repair having regard to the age and character or the premises and the period during which the premises are likely to remain habitable and available for residential purposes.

74. It is well settled that a landlord’s obligations under section 45(1)(b) RTA are to investigate and repair a defect brought to their attention within a timeframe that is reasonable in the circumstances. As to what is reasonable will depend upon the gravity of the problem and objective attempts made by the landlord to investigate and remedy the problem.

75. The tenant claims that the landlord failed to maintain the gas hob.

76. The tenant gave evidence that there was a problem with the spark on the gas hob. The tenant claims the landlord visited the property to inspect the issue and banged a hammer on the hob numerous times. The landlord could not fix the issue and gave the tenant a long neck lighter to use to ignite a flame on the hob in the meantime.

77. The tenant claims that the landlord caused a gas leak by banging on the hob, which was only discovered later on that night. The tenant claims he and his partner awoke to a strong smell of gas and immediately opened all of the windows. The tenant gave evidence that a gas fitter visited the address the next day to fix the problem and told the tenant that if a spark had gone off a fire would have ignited.

78. The landlord gave evidence that they received a complaint from the tenant that the spark on the hob wasn’t working and visited the address to investigate the issue. The landlord denies banging on the hob numerous times with a hammer.

79. The landlord gave evidence that they complete a mechanical engineer apprenticeship with [NAME] and have some rudimentary knowledge of

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such things. The landlord gave evidence that they could not fix the issue and therefore advised the tenant that a specialist would be called. The landlord gave evidence that they were unaware of any leak and if there had been any suggestion of a leak they would have immediately turned the gas off at the mains. The landlord gave evidence that the gas fitter never mentioned a leak to them.

80. The tenant has not proven on the balance of probabilities that the landlord caused a gas leak. The parties gave conflicting evidence about what the landlord did when they visited the property to investigate the issue. They also gave conflicting evidence about what the gasfitter said to them about the presence of a leak. The gas fitter was not called as a witness. In the absence of any evidence from the gas fitter, I am left uncertain.

81. The tenant reported the broken hob to the landlord and the landlord visited the address shortly thereafter to investigate the issue. A gas fitter was called the next day and the problem was fixed by installing a new unit. On the balance of probabilities, I am satisfied that the landlord investigated and remedied the defect within a reasonable timeframe.

82. The tenant’s claim that the landlord failed to maintain the gas hob in a reasonable state of repair is dismissed.

BOND

83. The tenant seeks a refund of the bond.

84. The landlord has a claim against the bond for outstanding water and power, which I have dismissed. Therefore, the bond is refunded to the tenant in full.

FILING FEE

85. The only claim the tenant has been successful in is their claim for a refund of the bond. I do not consider the tenant has been substantially successful and therefore, I do not order that the landlord reimburse the tenant the filing fee.

[NAME]

05 February 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: