Published tribunal order
Tenancy Tribunal case 4660409 — Unit Titles at Unit/Flat 311, 287 Onehunga Mall, Onehunga, Auckland
Decided 11 Oct 2023 · Published 11 Oct 2023 · Application 4660409
Tenant favoured
- Unit Titles
- Compensation
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Atrium On Main Limited must refund Kelsey Joanne Wainhouse $25.86, being the application filing fee of $20.44 and a credit of $5.42 for water payments. This amount may be applied as a credit against the next water invoice or paid immediately.
- By way of declaration, Kelsey Wainhouse is not liable for any water related costs incurred during this tenancy up to and including Thursday 31 August 2023.
Reasons
- Both parties attended the hearing, conducted via teleconference
- The tenant sought a declaration of non-liability for water costs claimed. Background
- This tenancy commenced 17 November 2019. In the tenancy agreement the tenant provided her email address. The tenancy agreement also stipulated the tenant was to pay for “for any metered water provided to the premises. Invoiced from the Body Corporate”.
- The tenant never received any water invoice or related communication until on or around 16 August 2023. At that time she received and paid an invoice for $5.42. This invoice detailed that cost as being made up of $5.00 as an admin fee and $0.42 for fixed charges. Also at that time, an account statement was served on the tenant, detailing monthly water costs since 5 April 2023, totalling $1,475.13. This amount was deemed immediately payable.
- Some two days later the tenant lodged her application to the Tenancy Tribunal.
- I note the account statement commences from 5 April 2019, some 32 weeks before this tenancy commenced. Further, it does not provide any invoice details and the monthly amount claimed varies considerably. There are a number of legitimate concerns of the tenant regarding the accounting process.
- It appears any water invoices, if sent, were being sent to an incorrect email address. I was told the owner (named in the account statement) was equally left unaware of the accruing costs. I need not concern myself with that in relation to this tenant application. The law
- 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.”
- In this case, water costs were to be paid by the tenant per the tenancy agreement. It is unclear on the evidence at hand if the premises water use is metered and, if so, if it is exclusive to the premises (see also s 39(5) RTA). Case law
- There is no specific provision in the Act regarding the timeliness of bill presentment for any tenant obligations per s 39.
- Timeliness of presentment has been subject to a number of appeals to the District Court after previous Tribunal determinations that the tenant was not liable for claimed water costs due to the failure of the landlord to present bills in a timely manner. In Woollams v Simpson DC CIV-2005-004-1583, the judge found there was an implied term in the tenancy agreement imposing an obligation on a landlord to deliver copies of invoices at the time the charges were made or shortly thereafter.
- This finding has been subsequently reinforced in Braganza v Saia DC Auckland CIV-2010-004-002024, Euro Land Limited v Hill & Johnson DC CIV-2014-019- 860, and more recently in 2018 in Nordon 3202 Limited v Nair DC CIV-2018- 004-575.
- In Braganza v Saia, there had been a failure by the landlord to deliver invoices and the judge said in the order. [15]....It is plainly incumbent on a landlord to set out with clarity what it is that he claims is due as and when it falls due, and, when it comes to water, to provide the bills to the tenant as they fall due, so that the tenant may make any challenge to the supply that he thinks is appropriate and make arrangements for the payment in a timely fashion. [16]....If the tenant is to be asked to pay after the event with no opportunity to check the calculation or to make provision for payment at the time, he is at a manifest disadvantage...
- It appears well settled that the landlord has a requirement to deliver accounts in a timely manner. In this instance, there are further concerns regarding the veracity of the recent aggregated statement and the metering and accounting process. These legitimate concerns of the tenant should be assuaged by the landlord if and when a properly formed account for the most recent billing period is drafted and presented to the tenant.
- The precedent established by the above decisions means I find the tenant is not liable for any historic water costs as claimed on 16 August 2023. This non- liability does not apply to any future accurate accounting and invoicing served on the tenant for appropriate water consumption costs incurred since the end of August 2023. I have adopted a monthly bill cycle to align with that same cycle used in the account statement. Application filing fee
- Because Kelsey Joanne Wainhouse has wholly succeeded with the claim I must reimburse the filing fee. Account credit
- The tenant stated she paid the August 2023 account of $5.42 in good faith. Neither line item in that account pertain to consumption costs or tenant liability and I order the $5.42 be returned to the tenant. This may be via a credit for against any future liability or direct payment.