What was the outcome of Tenancy Tribunal case 4488600?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4488600?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $400.00 awarded to landlord; Formica Kitchen Benchtop: $350.00 awarded to landlord

What type of tenancy dispute was case 4488600?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4488600?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9160563-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4488600?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4488600?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $400.00 awarded to landlord; Formica Kitchen Benchtop: $350.00 awarded to landlord

What type of tenancy dispute was case 4488600?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4488600?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9160563-Tenancy_Tribunal_Order.pdf.

13 Kennedy Road, Surfdale, Waiheke Island 1081 Tenancy Tribunal Case 4488600 — Rent arrears

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

13 Kennedy Road, Surfdale, Waiheke Island 1081 Tenancy Tribunal Case 4488600 — Rent arrears | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4488600 — net $770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears: agreed between the parties	$400.00	Rent arrears: agreed between the parties
Repairs: Formica kitchen benchtop	$350.00	Repairs: Formica kitchen benchtop
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$770.44
Total payable by Tenant to Landlord	$770.44

Claims and awards for application 4488600 — net $770.44 NZD. Verify on MoJ.

Rent arrears: agreed between the parties

Amount: $400.00
Awarded to: Landlord
Reason: Rent arrears: agreed between the parties

Repairs: Formica kitchen benchtop

Amount: $350.00
Awarded to: Landlord
Reason: Repairs: Formica kitchen benchtop

Filing fee reimbursement

Amount: $20.44
Awarded to: Landlord
Reason: Filing fee reimbursement

Net award

Landlord $770.44

Total payable by Tenant to Landlord

Landlord $770.44

Claim types — money lines allowed on this order

Filing Fee Rent arrears Property damage

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Rahul Singh and Navdeep Singh to pay Waiheke Best Rentals & Property Management Limited As Agent For Asha Court C/- Louise Court $770.44 from the bond, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The tenancy ended on 29 December 2022. The landlord provided rent records which prove the amount owing at the end of the tenancy is $400.
The tenant did not dispute that $400 was the correct amount. Burden of proof
When filing a complaint, the burden of proof lies with the party making the claim. The party making the complaint needs to provide evidence that it is more likely than not that the opposing party breached the terms of the agreement or the Residential Tenancies Act 1986 ("RTA"). This is known as the balance of probabilities standard.
In the present case, the landlord must establish the claim to the civil law standard of proof, on the balance of probabilities.

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

Is the tenant responsible for the damage to the premises?

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.
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.
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.
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.
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.
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.
The landlord alleges that the tenant damaged the kitchen benchtop and induction cooktop. Kitchen benchtop
The landlord alleges the tenant caused a burn mark on the kitchen benchtop during the tenancy. The landlord submitted that the kitchen benchtop was brand new in 2018. The tenancy commenced on 18 November 2019 and ended on 29 December 2022.
The landlord does not allege that the tenant damaged the kitchen benchtop recklessly or intentionally. Rather, the landlord alleges that the tenant damaged the surface of the kitchen benchtop carelessly.
The landlord submitted photographs of the damage and an expert opinion from Neil N Enterprises Ltd. After viewing the damage, the expert opinion of 17 February 2023 states, “... I have viewed this [damage] and in my opinion, the marks/dents on the bench have come from a high source of heat.”
The tenant submitted that the damaged area is not a burn mark because a burn mark would look brown or black. The tenant further submitted that they have no small utensils in the kitchen and, therefore no high source of heat would cause the damage. The tenant submitted that the moisture in the house caused the surface of the benchtop to pop up. The damaged area was a fair wear and tear because it is a kitchen benchtop, and it was beside the sink.
I have carefully reviewed the evidence and the submissions by both parties. I do not accept the landlord’s submissions or her expert opinion that the “... marks/dents on the bench have come from a high source of heat.”
Regardless of whether it is a burn mark or not, I find that the tenant caused the damage to the kitchen benchtop for the following reasons: a. The benchtop is known as Formica kitchen benchtop. b. The colour around the damaged area differs from the colour further away from the damaged area or near the sink. c. The landlord gave evidence that the tenant used spice. An ingredient commonly used when preparing Indian meals. This evidence is not challenged in the hearing. The colour is consistent with the spice being used when preparing meals. Yellow can be seen vividly around the damaged area. d. The damage is not just on the surface of the Formica benchtop. The damage is etched into the surface of the benchtop. e. I do not accept that the damage was a burn mark because it is not consistent with a burn. The damage is consistent with an item placed where the damage is regularly.
Accordingly, the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The landlord sought compensation for an insurance excess of $1,100. The landlord submitted a quote for replacing the kitchen benchtop. The quote is $7,586.84. The quote also includes sink replacement and disconnection/reconnection of plumbing. There is no separate quote for replacing the benchtop.
Even if the quote itemises the cost of replacing the benchtop, the sink and disconnection/reconnection of plumbing, I would not award the insurance excess of $1,100 to the landlord because it is excessive.
This is because the landlord is only required to 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. I have considered the benchtop’s age and condition at the start of the tenancy and their likely useful lifespan.
The damaged area can be repaired. It is unnecessary to replace the entire kitchen benchtop for damage that can be repaired easily.
The landlord did not obtain a quote for repairing the damage. I consider compensation of $350 sufficient to repair the damaged area and put the landlord back to where she would have been had the tenant not breached their obligations. Induction cooktop vs Ceramic cooktop
There is no dispute that the cooktop has a misty/cloudy appearance where the cookware was to be placed when cooking. It is also known as the cooking zone.
What is in dispute is that the landlord submitted that the cooktop is an induction cooktop. The landlord alleges that the tenant used incorrect cookware and caused damage to the induction cooktop.
On the other hand, the tenant submitted that it was not an induction cooktop. It was a ceramic cooktop. Misty or cloudy glass is fair wear and tear of a ceramic cooktop.
In the hearing, I asked that the landlord provide evidence to support her claim that the cooktop was an induction cooktop within seven days after the hearing since there was no existing evidence to support her contention. The deadline for submission is 12 July 2023.
On 10 July 2023, the Registry forwarded me an email with attachments from the landlord. I directed the Registry to forward the same to the tenant for comment. I gave the tenant to reply by 1 pm on 13 July 2023.
The Registry did not appear to have received a reply from the tenant by the deadline.
The four attachments to the landlord’s email are: a. A photo of the kitchen’s condition after it was cleaned in January 2023. b. A photo of the cooktop’s conditions after it was cleaned in January 2023. c. A photo of the kitchen benchtop where the damage was. This damage was heard in the hearing. I have dealt with this claim above. d. A photo of the kitchen benchtop shows what appears to be similar damage. This damage was not heard in the hearing. I cannot accept this photo as evidence for a new damage claim, as it was not brought up during the hearing.
The landlord in the email confirmed that the kitchen cooktop is ceramic. She continued her submissions: “The owner advised the hob is ceramic glass, however on investigating this further we found both are the same type of glass product, the hob was damaged regardless of been induction or ceramic, as per user guidelines the glass cooktop was not used in accordance with the user manuals. I believe it was carless use and using the wrong cookware.”
The evidence the landlord submitted in the hearing was a piece of paper that stated the following: “Induction glass cook tops.

Why is my induction stove top cloudy?

Cloudy, 'milky' or crazed glass is caused by unburned acidic condensates (wet pot bottoms, water then mineralizes due to extreme heat) etching the ceramic glass and unfortunately this cannot be easily removed. It is definitely not faulty glass, but has to do with the quality of the fuel that you burn or the way that you operate your stove. Wet cookware consistently can cause cloudy cooktop Consistently using high heat which mean (sic) using the wrong cookware.” (Original emphasis).

I do not have evidence about the source of information. I cannot determine the reliability of the information or if the information is from an expert.
The landlord has alleged that the tenant should have used the glass cooktop in accordance with the user manuals. However, the landlord has not provided the user manuals as evidence. Therefore, it is difficult to determine how the tenant may have caused damage to the cooktop.
Based on the evidence submitted, I am not satisfied that the tenant caused damage to the glass cooktop or that the damage is not fair wear and tear while occupying the property. The landlord has not provided sufficient evidence to meet the required standard of proof.
Accordingly, the claim under this heading is dismissed. Filing fee
Because Waiheke Best Rentals & Property Management Limited As Agent For Asha Court C/- Louise Court has substantially succeeded with the claim I have reimbursed the filing fee.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4488600 — net $770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears: agreed between the parties	$400.00	Rent arrears: agreed between the parties
Repairs: Formica kitchen benchtop	$350.00	Repairs: Formica kitchen benchtop
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$770.44
Total payable by Tenant to Landlord	$770.44

Claims and awards for application 4488600 — net $770.44 NZD. Verify on MoJ.

Rent arrears: agreed between the parties

Amount: $400.00
Awarded to: Landlord
Reason: Rent arrears: agreed between the parties

Repairs: Formica kitchen benchtop

Amount: $350.00
Awarded to: Landlord
Reason: Repairs: Formica kitchen benchtop

Filing fee reimbursement

Amount: $20.44
Awarded to: Landlord
Reason: Filing fee reimbursement

Net award

Landlord $770.44

Total payable by Tenant to Landlord

Landlord $770.44

Claim types — money lines allowed on this order

Filing Fee Rent arrears Property damage

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Rahul Singh and Navdeep Singh to pay Waiheke Best Rentals & Property Management Limited As Agent For Asha Court C/- Louise Court $770.44 from the bond, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

The tenancy ended on 29 December 2022. The landlord provided rent records which prove the amount owing at the end of the tenancy is $400.
The tenant did not dispute that $400 was the correct amount. Burden of proof
When filing a complaint, the burden of proof lies with the party making the claim. The party making the complaint needs to provide evidence that it is more likely than not that the opposing party breached the terms of the agreement or the Residential Tenancies Act 1986 ("RTA"). This is known as the balance of probabilities standard.
In the present case, the landlord must establish the claim to the civil law standard of proof, on the balance of probabilities.

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

Is the tenant responsible for the damage to the premises?

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.
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.
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.
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.
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.
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.
The landlord alleges that the tenant damaged the kitchen benchtop and induction cooktop. Kitchen benchtop
The landlord alleges the tenant caused a burn mark on the kitchen benchtop during the tenancy. The landlord submitted that the kitchen benchtop was brand new in 2018. The tenancy commenced on 18 November 2019 and ended on 29 December 2022.
The landlord does not allege that the tenant damaged the kitchen benchtop recklessly or intentionally. Rather, the landlord alleges that the tenant damaged the surface of the kitchen benchtop carelessly.
The landlord submitted photographs of the damage and an expert opinion from Neil N Enterprises Ltd. After viewing the damage, the expert opinion of 17 February 2023 states, “... I have viewed this [damage] and in my opinion, the marks/dents on the bench have come from a high source of heat.”
The tenant submitted that the damaged area is not a burn mark because a burn mark would look brown or black. The tenant further submitted that they have no small utensils in the kitchen and, therefore no high source of heat would cause the damage. The tenant submitted that the moisture in the house caused the surface of the benchtop to pop up. The damaged area was a fair wear and tear because it is a kitchen benchtop, and it was beside the sink.
I have carefully reviewed the evidence and the submissions by both parties. I do not accept the landlord’s submissions or her expert opinion that the “... marks/dents on the bench have come from a high source of heat.”
Regardless of whether it is a burn mark or not, I find that the tenant caused the damage to the kitchen benchtop for the following reasons: a. The benchtop is known as Formica kitchen benchtop. b. The colour around the damaged area differs from the colour further away from the damaged area or near the sink. c. The landlord gave evidence that the tenant used spice. An ingredient commonly used when preparing Indian meals. This evidence is not challenged in the hearing. The colour is consistent with the spice being used when preparing meals. Yellow can be seen vividly around the damaged area. d. The damage is not just on the surface of the Formica benchtop. The damage is etched into the surface of the benchtop. e. I do not accept that the damage was a burn mark because it is not consistent with a burn. The damage is consistent with an item placed where the damage is regularly.
Accordingly, the damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The landlord sought compensation for an insurance excess of $1,100. The landlord submitted a quote for replacing the kitchen benchtop. The quote is $7,586.84. The quote also includes sink replacement and disconnection/reconnection of plumbing. There is no separate quote for replacing the benchtop.
Even if the quote itemises the cost of replacing the benchtop, the sink and disconnection/reconnection of plumbing, I would not award the insurance excess of $1,100 to the landlord because it is excessive.
This is because the landlord is only required to 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. I have considered the benchtop’s age and condition at the start of the tenancy and their likely useful lifespan.
The damaged area can be repaired. It is unnecessary to replace the entire kitchen benchtop for damage that can be repaired easily.
The landlord did not obtain a quote for repairing the damage. I consider compensation of $350 sufficient to repair the damaged area and put the landlord back to where she would have been had the tenant not breached their obligations. Induction cooktop vs Ceramic cooktop
There is no dispute that the cooktop has a misty/cloudy appearance where the cookware was to be placed when cooking. It is also known as the cooking zone.
What is in dispute is that the landlord submitted that the cooktop is an induction cooktop. The landlord alleges that the tenant used incorrect cookware and caused damage to the induction cooktop.
On the other hand, the tenant submitted that it was not an induction cooktop. It was a ceramic cooktop. Misty or cloudy glass is fair wear and tear of a ceramic cooktop.
In the hearing, I asked that the landlord provide evidence to support her claim that the cooktop was an induction cooktop within seven days after the hearing since there was no existing evidence to support her contention. The deadline for submission is 12 July 2023.
On 10 July 2023, the Registry forwarded me an email with attachments from the landlord. I directed the Registry to forward the same to the tenant for comment. I gave the tenant to reply by 1 pm on 13 July 2023.
The Registry did not appear to have received a reply from the tenant by the deadline.
The four attachments to the landlord’s email are: a. A photo of the kitchen’s condition after it was cleaned in January 2023. b. A photo of the cooktop’s conditions after it was cleaned in January 2023. c. A photo of the kitchen benchtop where the damage was. This damage was heard in the hearing. I have dealt with this claim above. d. A photo of the kitchen benchtop shows what appears to be similar damage. This damage was not heard in the hearing. I cannot accept this photo as evidence for a new damage claim, as it was not brought up during the hearing.
The landlord in the email confirmed that the kitchen cooktop is ceramic. She continued her submissions: “The owner advised the hob is ceramic glass, however on investigating this further we found both are the same type of glass product, the hob was damaged regardless of been induction or ceramic, as per user guidelines the glass cooktop was not used in accordance with the user manuals. I believe it was carless use and using the wrong cookware.”
The evidence the landlord submitted in the hearing was a piece of paper that stated the following: “Induction glass cook tops.

Why is my induction stove top cloudy?

I do not have evidence about the source of information. I cannot determine the reliability of the information or if the information is from an expert.
The landlord has alleged that the tenant should have used the glass cooktop in accordance with the user manuals. However, the landlord has not provided the user manuals as evidence. Therefore, it is difficult to determine how the tenant may have caused damage to the cooktop.
Based on the evidence submitted, I am not satisfied that the tenant caused damage to the glass cooktop or that the damage is not fair wear and tear while occupying the property. The landlord has not provided sufficient evidence to meet the required standard of proof.
Accordingly, the claim under this heading is dismissed. Filing fee
Because Waiheke Best Rentals & Property Management Limited As Agent For Asha Court C/- Louise Court has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4488600 — Rent arrears at 13 Kennedy Road, Surfdale, Waiheke Island 1081

At a glance

Tenancy Tribunal case 4488600 — Rent arrears at 13 Kennedy Road, Surfdale, Waiheke Island 1081

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Why is my induction stove top cloudy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Why is my induction stove top cloudy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions