What was the outcome of Tenancy Tribunal case 4700851?

The tribunal order states: Harold Vikash Chand and Susan Chand must pay Sanjesh Kumar $2,310.00

How much money was awarded in case 4700851?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4700851?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4700851?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9725894-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4700851?

The tribunal order states: Harold Vikash Chand and Susan Chand must pay Sanjesh Kumar $2,310.00

How much money was awarded in case 4700851?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4700851?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4700851?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9725894-Tenancy_Tribunal_Order.pdf.

13 Tamure Road, Flat Bush, Auckland 2019 Tenancy Tribunal Case 4700851 — Exemplary damages

Order

Harold Vikash Chand and Susan Chand must pay Sanjesh Kumar $2,310.00 immediately, calculated as shown in table below.
All other claims are dismissed.

Reasons

The Tribunal must consider an applications filed by both the landlords and tenant.
Both parties appeared at the hearing in Manukau on 6 December 2023.

BACKGROUND

The parties entered into a tenancy agreement commencing on 8 November 2019, ending on 2 July 2023, which is a tenancy of just over 3 ½ years duration. The tenancy was new at the start of the tenancy, and the landlords live next door. I understand there were four people living in the tenancy.
At the end of the tenancy both parties have filed claims which I will address below.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo 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 or 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.
Ultimately if the party brining the claim does not establish it to the balance of probabilities, the claim must be dismissed.

LANDLORDS CLAIMS

The landlord has filed a number of claims for compensation.
With any claim for compensation, to receive an order the party must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage 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. Carpet damage
The landlord seeks compensation for carpet replacement, the carpet being new at the start of the tenancy. The landlords state that the carpet is worn out and damaged with tar and gum on the carpet. The landlord refers to an email from Harrisons Carpet Court stating: I have viewed Harold and Susan’s carpet and the condition it is in. For a 5 year old carpet it is not in a very good condition. It has been badly stained, by the looks of it there is juice, tar and even chewing gum present on it.
The landlords have provided various photographs in support of this claim.
As I explained at the hearing, the photographs provided by the landlord show that the carpet is extensively faded, and it is stretched in places. I can understand why the landlord wishes to replace the carpet just because of those factors. But I cannot see any indication on those photographs of the carpet being stained, or of their being chewing gum or tar on the carpet.
I place little weight on the report from Harrisons Carpet Court, because it has a strong tenor of advocacy, and it fails to mention the obvious more significant fading and stretching.
Even if the landlord was correct, and there was some staining or other damage caused by the tenant, given this is not obvious on the photographs, that suggests that damage would be minor. There being some minor damage could still be consistent with fair wear and tear, being the effect of a family living in the house for 3 ½ years.
Ultimately the landlord has not convinced me that the carpet has been damaged from more than fair wear and tear, so must be dismissed. Laminated floor
The landlords state that tenant has damaged the laminate flooring by flooding the living room and hall flooring. The landlord refers me to an email from Prime Floors stating: In regards to your floor I can say that it is 100% water damage. I can’t say for sure how it happened, it does look like the previous tenants may have used a wet mop to clean the floor and didn’t dry the floor afterwards. This resulted in your flooring to swell.
The tenant states that he did not have any flooding, and considers that there was no dehumidifier or rangehood to remove moisture.
The landlord disputes that there is any defect with the house, noting that other areas of the building which are not part of the tenancy do not have a similar problem. The landlord states that wet mops should not be used, and the tenant should not airdry after mopping.
I accept there was some damage to the laminate flooring, and I have no reason not to accept that the statement from Prime Floors. It is difficult to say whether this damage would be beyond fair wear and tear. The nature of flooring is that it needs to be sufficiently robust to withstand normal use, and that also means normal cleaning, which for a smooth flooring like a laminate flooring would be mopping. Overall I am not persuaded there is sufficient evidence to show that the tenant has been careless in how he has used the floors, or that he has left excessive moisture on the floor after mopping it, beyond what a person would normally do when mopping a floor.
This claim must be dismissed because it is either fair wear and tear, or damage cause from something other than carelessness. Either way the landlord has not established the claim. Benchtop chips
The landlord claims that the tenant has caused damage to the benchtop by chipping the surface, probably with pots and pans. The landlord considers the tenant has not taken sufficient care with the benchtops, such as using chemicals or hair dye on the surface.
In response Mr Kumar advised that he would use the benchtop for cooking or usual use, and he does not consider there was any damage to the benchtop. The tenant considers it is normal wear and tear.
The landlord says that if there was a lack of quality with the bench top, the bench would have been effected in their premises also.
It is manifest that a benchtop, particularly in the kitchen, should be reasonably robust, and able to withstand some knocks or exposure of substances which arise from normal kitchen use. I am not of the view that the landlord has established that any damage to the kitchen bench is beyond what would have arisen from normal use of a kitchen bench in a tenancy. This claim has not been established. Resealing and regrouting
The landlord considers that the tenant has not properly cleaned the grout and silicon sealant. The landlord considers that the tenant has not used the correct chemicals.
The tenant questions whether the grout has been impacted by vibrations from work next door. The tenant disputes this claim.
I have no reservation in concluding that what the landlord has identified is maintenance of the premises which is the landlords responsibility. I cannot see anything that the tenant could arguably have done in relation to these items that would have carelessly damaged the grout and sealant. Grout and sealant does not last or stay pristine forever, eventually it requires replacement. The landlord has not convinced me that this damage is anything other than fair wear and tear, so the claim must be dismissed. Blind damage
The landlord seeks compensation for the replacement of blinds. The landlord has provided photographs which show the blinds to be frayed, and some marks on the blind itself. The landlord says that the marks could not be cleaned off the blind, and the curtains have otherwise ‘lost their quality’. The landlord states the blinds now need replacement.
Mr Kumar advised that there was no rangehood, and the blinds are close to the cooker, to the extent that some of the marks seen would relate to cooking.
Again while I accept that the blinds have become worn and marked, I am not persuaded that what is shown in the photographs is more than fair wear and tear in a tenancy of 3 ½ years. As it relates to any blinds that are located close to the cooker, it would be expected that they would become marked as a result of normal cooking. I cannot see how any fraying would be caused carelessly or intentionally by the tenant.
Because I find this is fair wear and tear, the claim is dismissed. Bathroom vanity
The landlord states that there are marks and stains on the bathroom vanity, which the landlord consider are from hair dye. The landlord states that the vanity could not be cleaned, and needed replacement because in the future it might break or crack. The landlord says further that there is water damage on the cabinetry comprising the bathroom vanity.
The tenant considers this is simply fair wear.
When I consider the photographs provided, I accept there are marks on the top of the vanity, and I also accept there is some swelling of the wooden bathroom cabinet below the bathroom sink (the vanity). But I am not persuaded that the landlord has proven this damage to be damage beyond fair wear and tear, particularly in a tenancy of this duration. It is manifest that bathrooms are wet areas, so the bathroom fittings and fixtures need to be able to withstand reasonable levels of moisture, and products normally used in a bathroom. The landlord has not established that there has been use of the bathroom in any way which a reasonable tenant would not do. This claim has not been established. Missing rail
The landlord seeks compensation for a missing wardrobe missing rail.
The Tenant agrees he did not return this.
Following discussion it was agreed that the tenant would pay $250.00 compensation. Bathroom door
The landlord seeks compensation for damage to the bathroom door. The photographs show that there are some areas to the surface and bottom of the door which have defects. As I noted in at the hearing it looked like for some areas there was swelling from moisture causing the damage, but the landlord did not consider there was swelling.
The tenant does not know what has caused the issue, but questions whether it is moisture, but notes that there was only one bathroom used by four people.
On the basis of the evidence before the Tribunal, I am not of the view the landlord has proven the damage is beyond fair wear and tear. It can be accepted that there will be exposure to some moisture in a bathroom from normal use, and the door needs to be sufficiently robust to withstand that. I cannot see what the tenant has done that would have carelessly damaged the door. This claim has not been established.

TENANTS CLAIMS

Bond

The landlord confirmed that $2,060.00 of bond was received from the tenant at the start of the tenancy, and confirmed it was not lodged with the Bond Centre.
The landlord states that there were various things happening at that time in the family which meant the bond was not lodged with the Bond Centre.
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge the bond with the Bond Centre.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for failing to lodge the bond id $1,500.00.
In this case, I consider it more likely than not that the failure to lodge the bond would be intentional. The parties used a standard form tenancy agreement, which records in various places that the bond needed to be lodged with the Bond Centre. I also note that after the tenant lodged his claim with the Tribunal, the landlord still has not lodged the bond, which must further confirm the intentional nature of the landlords decision not to lodge the bond. The landlords are not first time landlords, and it is well recognised in New Zealand that bonds need to be lodged with the Bond Centre. The effect of the landlords breach is that the tenants bond has not been kept securely in trust in the Bond Centre. There is a very strong interest for tenants, landlords and the public generally, that bonds be lodged with the Bond Centre to ensure that the bond system is robust. I consider it would be just to make an order in this case.
As I advised the landlord at the hearing, in the absence of aggravating factors the Tribunal normally would award exemplary damages at 1/3 of the maximum, and that is what I will order today. I order the landlord to pay exemplary damages of $500.00 for failing to lodge the bond. Letter box and rubbish bin
The final claim from the tenant is that the landlord did not provide a letterbox or rubbish bin. There is no requirement in law that a landlord provide a tenant with either a letter box or a rubbish bin, so this claim must be dismissed.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the landlord has applied for name suppression. However as the landlord has not been wholly substantially successful in the applications (neither has the tenant), name suppression is declined.

Tenancy Tribunal case 4700851 — Exemplary damages at 13 Tamure Road, Flat Bush, Auckland 2019

Tenancy Tribunal case 4700851 — Exemplary damages at 13 Tamure Road, Flat Bush, Auckland 2019

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

NAME SUPPRESSION

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

NAME SUPPRESSION