What was the outcome of Tenancy Tribunal case 4535273?

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

How much money was awarded in case 4535273?

Filing Fee: $20.44 awarded to landlord; Insurance Premiums: $1,527.82 awarded to landlord; Aluminium Gate: $2,242.50 awarded to landlord; Kitchen Vinyl: $975.00 awarded to landlord; Property Damage: $1,035.00 awarded to landlord; Remove Broken Side Fence And Rebuild: $3,450.00 awarded to landlord; Stain Timber Matching: $747.50 awarded to landlord; Rubbish Removal: $4,025.00 awarded to landlord; Rubbish Removal: $575.00 awarded to landlord; Property Damage: $862.50 awarded to landlord

What type of tenancy dispute was case 4535273?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4535273?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9321144-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4535273?

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

How much money was awarded in case 4535273?

Filing Fee: $20.44 awarded to landlord; Insurance Premiums: $1,527.82 awarded to landlord; Aluminium Gate: $2,242.50 awarded to landlord; Kitchen Vinyl: $975.00 awarded to landlord; Property Damage: $1,035.00 awarded to landlord; Remove Broken Side Fence And Rebuild: $3,450.00 awarded to landlord; Stain Timber Matching: $747.50 awarded to landlord; Rubbish Removal: $4,025.00 awarded to landlord; Rubbish Removal: $575.00 awarded to landlord; Property Damage: $862.50 awarded to landlord

What type of tenancy dispute was case 4535273?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4535273?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9321144-Tenancy_Tribunal_Order.pdf.

368 Great South Road, Opaheke, Papakura 2113 Tenancy Tribunal Case 4535273 — Property damage

Claims and awards in Tenancy Tribunal application 4535273 — net $15,460.76 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Front fence repair	$1,035.00	Repairs: Front fence repair
Repairs: Remove broken side fence and rebuild	$3,450.00	Repairs: Remove broken side fence and rebuild
Repairs: Stain timber matching	$747.50	Repairs: Stain timber matching
Insurance premiums	$1,527.82	Insurance premiums
Window repairs: 3 x windows	$862.50	Window repairs: 3 x windows
Rubbish removal: Tyre removal and labour	$575.00	Rubbish removal: Tyre removal and labour
Rubbish removal: Dispose of 500 car tyres	$4,025.00	Rubbish removal: Dispose of 500 car tyres
Repairs: Bathroom floor vinyl	$975.00	Repairs: Bathroom floor vinyl
Repairs: Aluminium gate	$2,242.50	Repairs: Aluminium gate
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$15,460.76
Total payable by Tenant to Landlord	$15,460.76

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The tenancy of Osmond Usman and Moira Poki at 368 Great South Road, Opaheke, Papakura 2113 is terminated, and possession is granted to Liang Huang, immediately.
Osmond Usman and Moira Poki must pay Liang Huang $15,460.76 immediately, calculated as shown in table below.

Reasons

The Landlord attended the hearing. The Tenant did not appear.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, compensation and reimbursement of the filing fee.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
The tenant has breached their obligations by failing to remove the tyres from the property, failing to repair the fence, failing to repair the smashed windows and ceasing to operate a business from the property.
The landlord served a 14-day notice on the tenant on 8 March 2023 and the tenant did not remedy the breach within the required period.
It would be inequitable to refuse to terminate the tenancy because the Tenant has caused considerable damage to the property through the operation of their car business and the Tenant has failed to repair the damage. The Tenant has been given multiple warnings which they have ignored and Tribunal Orders were made previously for the Tenant to remove the tyres which the Tenant has ignored. The tyres were a fire hazard. The Landlord’s insurance was also cancelled as a result of the Tenant continuing to operate a business from the property.

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 following damage was caused during the tenancy: Damage to the fence and gate, damage to three windows, damage to the vinyl floor of the toilet or damage to the lawns and garden.
The Landlord submitted that the fence and gate of the property was damaged by the Tenant operating their car sale/mechanic business. Vehicles would crash into the fence and gate but the Tenant failed to repair the damage. An email was provided of the fence in 2021 when it was originally built, photographs of the damage in 2023 and a 14 day notice to remedy the damages. A quote for the repairs was provided.
The Landlord submitted three windows were smashed by the Tenant driving vehicles recklessly into the house. The Tenant admitted to the damage and confirmed with the Landlord they would fix it when the Landlord pointed it out during an inspection. A photograph was provided of one of the smashed windows and the ingoing inspection report which showed no damage. A quote was provided for the repairs.
The Landlord claimed the vinyl floor of the toilet was damaged when the Tenant took it upon themselves to undertake repairs in the bathroom. The Tenant claimed they were a qualified Plumber. The Landlord discovered tiles were removed from the floor during an inspection and replaced with a sheet of vinyl which was not adhered to the floor. The Landlord provided photographs of the floor and an ingoing inspection report which indicated there was no damage before the Tenant moved in. A quote for the repairs was provided.
The amounts ordered are proved.
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. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Tyre removal
After the previous hearing, the Tenant removed the tyres to avoid termination of the tenancy. The Tenant subsequently brought back approximately 500 tyres to the property for their business. The Landlord provided photographs of the tyres which they submitted was still present on the day of the hearing as the Landlord drove past the property and saw them. A quote for the disposal, labour and Tyre Transfer station fees was provided.
The amounts ordered are proved. Claim for business insurance
The Landlord submitted that when they went to renew their house insurance, because the Tenant was operating a business at the property they had to change their insurance. Quotes were provided by the insurance company which the Tenant agreed to pay. The Tenant did not complete the appropriate forms for the insurance company to debit the amount from their bank account so the Landlord paid for the premiums. The Landlord provided insurance company correspondence and confirmation of premiums they had paid so far. The amounts ordered are proved. Lawn and garden restoration
The Landlord claimed for restoration of their garden and lawns which they deposed were ruined by the cars the Tenant drove onto them. Photographs provided showed there were approximately five cars parked around the property. The Landlord submitted they had garden beds which the Tenant destroyed by parking on top of them. There were no photographs provided of the garden beds at the start of the tenancy or anything noted in the ingoing inspection report. For this reason, it is difficult to see what the damage was to the lawns and gardens. The claim is dismissed.
As Liang Huang has substantially succeeded with the claim, the Tenant shall reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4535273 — net $15,460.76 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Front fence repair	$1,035.00	Repairs: Front fence repair
Repairs: Remove broken side fence and rebuild	$3,450.00	Repairs: Remove broken side fence and rebuild
Repairs: Stain timber matching	$747.50	Repairs: Stain timber matching
Insurance premiums	$1,527.82	Insurance premiums
Window repairs: 3 x windows	$862.50	Window repairs: 3 x windows
Rubbish removal: Tyre removal and labour	$575.00	Rubbish removal: Tyre removal and labour
Rubbish removal: Dispose of 500 car tyres	$4,025.00	Rubbish removal: Dispose of 500 car tyres
Repairs: Bathroom floor vinyl	$975.00	Repairs: Bathroom floor vinyl
Repairs: Aluminium gate	$2,242.50	Repairs: Aluminium gate
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$15,460.76
Total payable by Tenant to Landlord	$15,460.76

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The tenancy of Osmond Usman and Moira Poki at 368 Great South Road, Opaheke, Papakura 2113 is terminated, and possession is granted to Liang Huang, immediately.
Osmond Usman and Moira Poki must pay Liang Huang $15,460.76 immediately, calculated as shown in table below.

Reasons

The Landlord attended the hearing. The Tenant did not appear.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, compensation and reimbursement of the filing fee.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
The tenant has breached their obligations by failing to remove the tyres from the property, failing to repair the fence, failing to repair the smashed windows and ceasing to operate a business from the property.
The landlord served a 14-day notice on the tenant on 8 March 2023 and the tenant did not remedy the breach within the required period.
It would be inequitable to refuse to terminate the tenancy because the Tenant has caused considerable damage to the property through the operation of their car business and the Tenant has failed to repair the damage. The Tenant has been given multiple warnings which they have ignored and Tribunal Orders were made previously for the Tenant to remove the tyres which the Tenant has ignored. The tyres were a fire hazard. The Landlord’s insurance was also cancelled as a result of the Tenant continuing to operate a business from the property.

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 following damage was caused during the tenancy: Damage to the fence and gate, damage to three windows, damage to the vinyl floor of the toilet or damage to the lawns and garden.
The Landlord submitted that the fence and gate of the property was damaged by the Tenant operating their car sale/mechanic business. Vehicles would crash into the fence and gate but the Tenant failed to repair the damage. An email was provided of the fence in 2021 when it was originally built, photographs of the damage in 2023 and a 14 day notice to remedy the damages. A quote for the repairs was provided.
The Landlord submitted three windows were smashed by the Tenant driving vehicles recklessly into the house. The Tenant admitted to the damage and confirmed with the Landlord they would fix it when the Landlord pointed it out during an inspection. A photograph was provided of one of the smashed windows and the ingoing inspection report which showed no damage. A quote was provided for the repairs.
The Landlord claimed the vinyl floor of the toilet was damaged when the Tenant took it upon themselves to undertake repairs in the bathroom. The Tenant claimed they were a qualified Plumber. The Landlord discovered tiles were removed from the floor during an inspection and replaced with a sheet of vinyl which was not adhered to the floor. The Landlord provided photographs of the floor and an ingoing inspection report which indicated there was no damage before the Tenant moved in. A quote for the repairs was provided.
The amounts ordered are proved.
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. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Tyre removal
After the previous hearing, the Tenant removed the tyres to avoid termination of the tenancy. The Tenant subsequently brought back approximately 500 tyres to the property for their business. The Landlord provided photographs of the tyres which they submitted was still present on the day of the hearing as the Landlord drove past the property and saw them. A quote for the disposal, labour and Tyre Transfer station fees was provided.
The amounts ordered are proved. Claim for business insurance
The Landlord submitted that when they went to renew their house insurance, because the Tenant was operating a business at the property they had to change their insurance. Quotes were provided by the insurance company which the Tenant agreed to pay. The Tenant did not complete the appropriate forms for the insurance company to debit the amount from their bank account so the Landlord paid for the premiums. The Landlord provided insurance company correspondence and confirmation of premiums they had paid so far. The amounts ordered are proved. Lawn and garden restoration
The Landlord claimed for restoration of their garden and lawns which they deposed were ruined by the cars the Tenant drove onto them. Photographs provided showed there were approximately five cars parked around the property. The Landlord submitted they had garden beds which the Tenant destroyed by parking on top of them. There were no photographs provided of the garden beds at the start of the tenancy or anything noted in the ingoing inspection report. For this reason, it is difficult to see what the damage was to the lawns and gardens. The claim is dismissed.
As Liang Huang has substantially succeeded with the claim, the Tenant shall reimburse the filing fee.

Tenancy Tribunal case 4535273 — Property damage at 368 Great South Road, Opaheke, Papakura 2113

At a glance

Tenancy Tribunal case 4535273 — Property damage at 368 Great South Road, Opaheke, Papakura 2113

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions