What was the outcome of Tenancy Tribunal case 4611732?

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

How much money was awarded in case 4611732?

Cleaning: $100.00 awarded to landlord; Lawns and Garden Work: $60.00 awarded to landlord

What type of tenancy dispute was case 4611732?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4611732?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9352706-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4611732?

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

How much money was awarded in case 4611732?

Cleaning: $100.00 awarded to landlord; Lawns and Garden Work: $60.00 awarded to landlord

What type of tenancy dispute was case 4611732?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4611732?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9352706-Tenancy_Tribunal_Order.pdf.

6 Rennell Street, Frankleigh Park, New Plymouth 4310 Tenancy Tribunal Case 4611732 — Cleanliness

Claims and awards in Tenancy Tribunal application 4611732 — net $160.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Garden work	$60.00	Garden work
Cleaning	$100.00	Cleaning
Net award	$160.00
Total payable by Tenant to Landlord	$160.00

Claims and awards in Tenancy Tribunal application 4611732 — net $160.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Garden work	$60.00	Garden work
Cleaning	$100.00	Cleaning
Net award	$160.00
Total payable by Tenant to Landlord	$160.00

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The tenant’s claim is struck out.
The landlord’s claims for arrears, damage to doors and graffiti are dismissed.
Ross Phillip Wilton must pay Paul Jennings $160.00 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation and reimbursement of the filing fee following the end of the tenancy. The tenant also made a claim relating to breach of quiet enjoyment concerning work that was done to a deck during the course of the tenancy. The landlord’s claim Rent arrears
The tenancy was reasonably lengthy lasting from January 2014 to 15 March 2023.
The landlord says the tenant is in arrears by $320. The tenant disputes this.
A recent rent summary for 2023 was provided. There was no rent summary available for the whole of the tenancy.
Although a tenancy may be lengthy a landlord should be able to provide detail relating to the rent paid throughout. This is particularly important where the tenant is challenging an arrears claim.
Here the tenant questions the fact that he paid two weeks rent in advance prior to the tenancy starting and does not know how this has been applied.
In the absence of evidence relating to the sums paid throughout the whole tenancy I find that the landlord has not met the necessary burden to establish the claim for rent arrears. This is because I cannot be sufficiently certain what sums have been paid and how they have been applied throughout the tenancy. Therefore, I cannot be satisfied that the arrears claimed are correct.
This part of the claim is dismissed.

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

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy and remove all rubbish. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986 (RTA). Cleaning – Mould, carpets and miscellaneous cleaning
The landlord says the tenant did not leave the premises reasonably clean and tidy.
The RTA does not require the premises to be returned in an immaculate condition - only in a reasonably clean and tidy state. A house does not have to be cleaned to a professional standard or be ‘motel’ clean. What is required is that premises, including the stove and bathroom fittings, are cleaned and all personal items removed.
A tenant is not required to rigorously clean all walls, skirting, ceilings, lightshades or behind appliances.
It is common that a landlord wishes to clean to this "extra" level so that they can re-tenant or sell. However, that is a business decision that a landlord makes at their cost.
There is no scientific way to determine what is reasonably clean and tidy. What is required is for the Tribunal to evaluate the evidence available (particularly photographs presented) and then consider whether the premises would be reasonably clean.
The landlord makes a claim in relation to cleaning mould off walls in the sum of $633. The tenant says that the mould was cleaned. The landlord had very limited photographic evidence to support this claim. There were only two photographs of the lounge that were taken during the course of the tenancy.
The tenant provided a copy of a photograph of the same area that showed the area clean. The tenant says he took the photograph at the end of the tenancy.
I find that the landlord has not sufficiently established that the property was not left reasonably clean and tidy due to mould on the ceilings. The two photographs provided did not show the property at the end of the tenancy. It is therefore impossible for me to know the extent of any mould (if any). In any event, the two photographs show a small amount of mould which, if reflective of the mould remaining, would far from support the reasonableness of a claim for $633. Therefore, I make no award in relation to the invoice for $633.
The landlord says he needed to get the carpets cleaned in the lounge and claims $130 in respect of this. An invoice was provided. The landlord provided photographs of several areas he says had stains. In some of the photographs the marks are not clear but a rust mark and a brown spot are pictured.
The landlord and tenant agreed that the tenant had cleaned the carpets prior to the end of the tenancy. The landlord’s position was that stains remained despite that cleaning effort. The tenant says that some of the stains are under the place where their dining table went. They had tried to get most of them out.
The tenant says there were stains on the carpet when they moved in. No pre- tenancy report and no pre tenancy photographs were presented by the landlord. It is not clear what stains were historic.
The tenancy was reasonably long and spanned over 9 years. A landlord might expect to clean carpets at the end of a 9-year tenancy in any event. There was no suggestion that the carpet was replaced during the tenancy and I note that the useful lifespan of carpet in a residential tenancy is eight years (according to the IRD's General Depreciation Determination DEP80). I consider that this reflects how clean a tenant might expect to get a carpet of this age.
I therefore find that, despite the spots pictured, the carpet was left reasonably clean and decline to make an award in respect of the carpet.
The landlord says that the tenant did not clean the oven, the dishwasher, mould on windows and did not clean a blind.
I accept the oven was not cleaned to a reasonable standard. The tenant admitted that this had been overlooked. I have awarded $100 to reflect this. The Tribunal frequently deals with claims for oven cleaning, and I consider this to be a reasonable amount.
I find that a wrapped lolly left on the open dishwasher door does not amount to a dishwasher or the premises not being left reasonably clean.
While a blind and windows may have needed wiping, the photographs presented as evidence do not establish that the property was not left reasonably clean because of this. In any event, the information on the invoice provided for the cleaning costs relating to this part of the claim is insufficient for me to calculate an appropriate award for this work because no time has been specified for how long his work took and the sum claimed is mixed with other costs associated with remedying damage that has been dismissed (below) and the evidence is otherwise insufficient for me to determine what would be reasonable.
I therefore award the landlord $100 in respect of the cleaning. Gardening
The landlord says that there was rubbish in the garden and the gardens required work at the end of the tenancy. Several close up photographs were provided. No photographs of the overall area were provided.
The invoice claimed is for $551. The invoice sets out the work done as being (1) greenery covering footpaths, (2) edges ‘disccut’, (3) paving being cleared, (4) hedge lines cut, (5) soft edges weed wacked, (6) lawn mowed and (7) leaves blown. It also sets out ‘dump fees’ of $60.
The landlord says the tenant left fence netting, a boogie board, a BBQ grill and a large umbrella but the dump fees mainly relate to the garden waste. Photographs of these items left in the garden were presented to the Tribunal.
The landlord provided a photograph of a paved area that was covered with weeds. This was the extent of the probative evidence relating to items (1) and (3) on the invoice.
The landlord was not clear about what was needed or done in relation to item (2) and there was no probative evidence. Item (4) relates to trimming a large hedge (photographed). Item (5) and (6) related to weeds/growth along a fence line (photographs provided) and item (7) related to the blowing of small piles of leaves gathered by the property (photographs provided).
The tenant says he did the lawn and provided a letter from a neighbour that supported this. He says he forgot the BBQ plate but the umbrella, and the fence netting were there at the start of the tenancy. He says the umbrella was under weeds. The tenant says that the invoice shows that the work was done on 26 April 2023 whereas he had moved out on 15 March 2023. Therefore, the gardens would have grown.
The landlord clarified that he was not claiming that the tenant had not done the lawns. He says the claim for mowing relates to the strips by the fences.
I find that the tenant did not remove the BBQ plate and the boogie board. I decline to make an award for compensation in respect of this – they are items that could have been disposed of in a regular rubbish collection. The landlord could have mitigated his loss by disposing of the items this way. The landlord has not proven the umbrella and fencing were not at the tenancy when the tenancy began. There is no pre-tenancy report or photographs in relation to this. I find it credible that these items were in the garden at the start because I heard from both parties how there were other issues surrounding the presentation of the property at the start of the tenancy.
I find that the tenant is not liable for the trimming of the hedge. I do not consider that the photograph showed a hedge that required trimming and in any event I would consider that trimming a large hedge such as this is a landlord responsibility. There is insufficient evidence to support a claim for ‘discutting’ the edges. The piles of leaves photographed are small and do not mean the exterior of the property was not left reasonably tidy.
I do accept that there was some growth along the fence line and this combined with the paved area of the property being covered with weeds means the garden was not left reasonably tidy. I accept that there would have been some growth between 15 March 2023 and when the work was done and have taken this into account when making my award. I consider an award of $60 a reasonable sum for this garden work.

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.
I must consider 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 the age and condition of the items at the start of the tenancy and their likely useful lifespan are factors to consider.
The landlord says that the tenant damaged two doors and a wall. These claims are considered below. Bedroom wall
The landlord says the tenant is responsible for some graffiti under a light switch. The landlord provided a photograph. This is in the bedroom that was occupied by the tenant’s daughter who the tenant says is presently 16.
The tenant says that his daughter says she did not do this. His position is that it has been there from the start of the tenancy and that his daughter has no reason to write the year ‘2002’ as has been written. He says it was first noticed about 3 or 4 years ago. The tenant says the landlord did not say anything during the tenancy about it. The landlord said he did notice it.
Although there are no pre-tenancy photographs, I find it more likely than not that the damage occurred during the course of the tenancy. This is because I do not find it credible that the graffiti was not noticed by the tenant sooner in the tenancy or that it simply appeared. It is in an obvious position under a light switch.
It is more than fair wear and tear. I find that writing on the wall would have been intentional.
The work the landlord claims for relates to the patching and painting of the whole wall rather than just the area concerned. The invoice relied upon by the landlord does not set out how much time (or cost) was spent undertaking this work as it is mixed with other claims (door replacement and cleaning). The landlord said most of the $900 (+GST) set out in the invoice related to this paint work. There is also a sum in relation to materials – this is also mixed with other claims.
The Tribunal cannot guess how much of the claim relates to the paint work and how much relates to the doors/cleaning. It is important to know this information because (a) the claims in relation to the doors (below) and some of the cleaning (above) have been unsuccessful; and (b) I must depreciate the sum that is claimed.
Further, given the limited size of the area concerned, the age of the paint work and the lack of evidence about the overall condition of the wall I would consider it reasonable to limit compensation to patching the area concerned.
In any event, the paint work in the bedroom is as least as old as the tenancy - being over 9 years old. There was no probative evidence as to the condition of the paint work prior to the tenancy starting or specific information about when the room was last painted. Paint work in a bedroom can be expected to have a useful lifespan of around 9 -14 years. In the absence of pre-tenancy photos and a pre-tenancy inspection report I would take the lower end of this scale as the applicable lifespan. This means that depreciation would extinguish the claim.
This claim is therefore dismissed. Doors
The landlord claims for the cost of replacing two doors.
The landlord said he replaced three doors but the third was historic damage and the cost of that door has not been claimed from the tenant – this is noted on the invoice.
The tenant says that the first door was already damaged with a hole when he moved in but admitted that his son had made the hole larger by poking at it with a cricket wicket. The tenant provided photographs of doors damaged at the start of the tenancy.
The tenant says he damaged the second door when he stopped the door with his foot when he was in a discussion with his daughter who had slammed it.
I find that the damage to the door by the tenant with his foot was accidental and therefore he is not liable for this damage.
I find that the damage caused to the door by the son poking at it with a cricket wicket is more than fair wear and tear and is intentional damage.
The landlord did not dispute that this door was already damaged at the start of the tenancy. In any event, there are no pre tenancy inspection reports / photographs to refute the tenant’s position.
There was no way for me to compare the state of the door at the start of the tenancy compared to the end of the tenancy. Importantly, there was no photograph of the door at the end of the tenancy. There was no evidence to show how the tenant’s actions increased the landlord’s loss (if at all) given that the door was already damaged.
Further, the landlord says that the doors are original, hollow core doors. The house dates from the 1970s. Current depreciation guidelines estimate that a hollow core door should last up to 20-30 years in a rental property. The door has therefore, in any event, surpassed its expected lifespan. In the absence of evidence that the door was in good condition at the start of the tenancy depreciation extinguishes the claim.
I therefore dismiss this part of the claim. The tenant’s claim
The tenant has bought a claim for compensation for breach of quiet enjoyment. The claim centres on the rebuilding of a deck during the course of the tenancy.
The tenant has already bought an application to the Tribunal. This application was filed after the tenancy ended. It related to the return of his bond and compensation. I made an order in that application on 23 May 2023.
There is a legal principle, known as the ‘rule of Henderson v Henderson’ that applies. This principle arises from a judgment delivered some 177 years ago, being Henderson v Henderson [1843] 3 Hare 100, but has been applied over the years since. This principle is that a party is expected, indeed required, to present their entire case during the course of legal proceedings. The act of raising a line of argument in subsequent proceedings which could and should have been raised in the earlier proceedings constitutes an abuse of process and leaves the subsequent proceedings vulnerable to being struck out. The judgment states: Where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances), permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
In this case, I am unable to see any reason why the tenant could not have made this claim in his earlier application.
It is a claim that relates to events that occurred during the tenancy and his first application was bought after the tenancy had ended. The tenant’s explanation for this was that the landlord had not cross claimed so he did not include it. This is insufficient to displace the principle arising from Henderson v Henderson.
This is a case where I consider the rule of Henderson v Henderson should be applied, and on that basis, the tenant’s application should be struck out. I note that the High Court in Body Corporate 375933 v Tenancy Tribunal and Wellington Waterfront Luxury Apartment Limited [2017] NZHC 1619 has confirmed the Tribunal’s ability to strike out applications in appropriate cases. Suppression and filing fee
The landlord’s claim was for significantly more than that which he has been awarded. For this reason, I decline to award the filing fee.
Neither party wanted me to consider name suppression on their behalf so I have not done this.

Tenancy Tribunal case 4611732 — Cleanliness at 6 Rennell Street, Frankleigh Park, New Plymouth 4310

At a glance

Tenancy Tribunal case 4611732 — Cleanliness at 6 Rennell Street, Frankleigh Park, New Plymouth 4310

At a glance

Award balance

Claims & awards

Order

Reasons

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

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

Order

Reasons

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions