What was the outcome of Tenancy Tribunal case 4719801?

The tribunal order states: Carl Bernard Wickins must pay Delia Chetcuti $5,002.62 immediately,

How much money was awarded in case 4719801?

Compensation: Dyer door hinge malfun…: $510.00 awarded to tenant; Compensation: No water supply for se…: $200.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Power Arrears: $282.14 awarded to landlord; Property Damage: $40.00 awarded to landlord; Fire Doors: $7,790.48 awarded to landlord

What type of tenancy dispute was case 4719801?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4719801?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10108552-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4719801?

The tribunal order states: Carl Bernard Wickins must pay Delia Chetcuti $5,002.62 immediately,

How much money was awarded in case 4719801?

Compensation: Dyer door hinge malfun…: $510.00 awarded to tenant; Compensation: No water supply for se…: $200.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Power Arrears: $282.14 awarded to landlord; Property Damage: $40.00 awarded to landlord; Fire Doors: $7,790.48 awarded to landlord

What type of tenancy dispute was case 4719801?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4719801?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10108552-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1506, 1 Courthouse Lane, Auckland Central, Tenancy Tribunal Case 4719801 — Property damage

Claims and awards in Tenancy Tribunal application 4719801 — net $5,002.62 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Power arrears	$282.14		Power arrears
Repairs: fire doors	$7,790.48		Repairs: fire doors
Keycard replacement	$40.00		Keycard replacement
Compensation: Dyer door hinge malfunction		$510.00	Dyer door hinge malfunction
Compensation: No water supply for seven days		$200.00	No water supply for seven days
Exemplary damages: Failure to maintain		$1,500.00	Failure to maintain
Total award	$8,112.62	$2,210.00
Net award	$5,002.62
Total payable by Tenant to Landlord	$5,002.62

Claims and awards in Tenancy Tribunal application 4719801 — net $5,002.62 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Power arrears	$282.14		Power arrears
Repairs: fire doors	$7,790.48		Repairs: fire doors
Keycard replacement	$40.00		Keycard replacement
Compensation: Dyer door hinge malfunction		$510.00	Dyer door hinge malfunction
Compensation: No water supply for seven days		$200.00	No water supply for seven days
Exemplary damages: Failure to maintain		$1,500.00	Failure to maintain
Total award	$8,112.62	$2,210.00
Net award	$5,002.62
Total payable by Tenant to Landlord	$5,002.62

Order

Carl Bernard Wickins must pay Delia Chetcuti $5,002.62 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $9.00 (6165609-001) to Delia Chetcuti immediately.

Reasons

The hearing was held on 20 March 2024. Both parties attended the hearing.
The tenant, Mr Wickins, attended the hearing. He filed an application with the Tribunal seeking compensation for failure to maintain the facilities. The landlord issued a retaliatory notice, failed to lodge his bond with the Bond Centre, and the apartment had no water supply for seven days.
Ms Chetcuti, the landlord, attended the hearing. She filed an application with the Tribunal seeking compensation for damage to the fire doors, power arrears, three replacement keys, and missing chattels (linen and towels).
At the outset, I record that Mr Wickins’ rent is up to date, and Ms Chetcuti does not suggest that his rent has been behind.
I will consider Mr Wickins’ application first, followed by Ms Chetcuit.

What is the standard of proof?

The applicant must prove all elements of the claim on the balance of probabilities; i.e., more probable than not.
In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.
This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: [102] ... In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.
Section 97(4) Residential Tenancies Act 1986 provides that: ... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law.
It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require stronger evidence before finding the claim proved on the balance of probabilities.
I now turn to Mr Wickins claims against the landlord, Ms Chetcuti.

Did the landlord fail to maintain the facilities?

Carl Bernard Wickins claims that the landlord has breached her obligations under section 45 of the Residential Tenancies Act 1986 (“RTA”) because she did not maintain the dryer and washing machine during the tenancy.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair, which also includes maintaining any facilities included and provided by the landlord as part of the tenancy agreement. Washing machine
Mr Wickins said the washing machine stopped working properly soon after the tenancy commenced, making a horrible grinding noise. It sounded like there were bearings or crunched-up metal inside it. Mr Wickins said the washing machine initially worked but then stopped functioning. It was not clear how long the washing machine was functional after Mr Wickins tenancy commenced. Mr Wickins said he had not used the washing machine for about four weeks.
Ms Chetcuti said that the washing machine was not working on 10 August 2023 and that Mr Anthony Tanner was the contractor instructed to fix it on 11 August 2023. However, when he arrived, he had to deal with a water issue and was unable to fix the washing machine or test it. Ms Chetcuti also said that Ms Wickins did not give her consent to enter the premises to repair the washing machine later.
Ms Chetcuti also relied on an affidavit affirmed by Mr Tanner that he was unable to fix the washing machine because he ended up working on the shower mixer, which was an urgent issue that required his immediate attention.
According to Ms. Chetcuti, she ultimately replaced the washing machine. She also suggested showing me a video confirming that the washing machine was in working order post-tenancy. However, I declined to view the footage as it had no relevance to Mr. Wickins' claim that he was unable to use the washing machine for four weeks during his tenancy.
I accept that the washing machine was not in good order, which resulted in Ms Chetcuti replacing it after Mr Wickins’ tenancy.
I do not accept Ms Chetcuti’s submissions that Mr Wickins denied consent to allow a tradesperson to enter the premises to repair the washing machine throughout the tenancy. This is because section 48(2)(d) RTA permits Ms Chetcuti to enter the premises to repair at certain hours provided Mr Wickins is notified of the intended entry and the reasons for it at least 24 hours before the intended entry.
I am satisfied that the washing machine was not in good order during the tenancy. However, I am not satisfied on the balance of probabilities that Mr Wickins was unable to use it for four weeks.
There is no evidence before me to determine the damage caused by the washing machine not being in good order during the tenancy. For instance, there is no evidence to support Mr Wickins’ assertion that he was unable to use the washing machine for four weeks.
Accordingly, it is not appropriate to award compensation in favour of Mr Wickins for not being able to use the washing machine during the tenancy. Dryer
It is not in dispute that the dryer’s door hinge was to be replaced. The door hinge issue was noted in the tenancy agreement, and Mr Wickins was aware of this.
Mr Wickins said he used tape to make the dryer work because the door was faulty. The tape kept the door closed and allowed the dryer to operate. However, the tape on the dryer door would stop working after about 20 minutes due to the heat from the dryer affecting the glue on the tape.
Knowing the dryer door hinge was to be replaced at the commencement of the tenancy, why did Ms Chetcuti not replace the dryer or fix the problem? Ms Chetcuti said that, unfortunately, the dryer model was discontinued, and the part for the door was no longer available. She said she tried to get the part but was unsuccessful. Therefore, Ms Chetcuti was unable to repair the dryer door. Ms Chetcuti also said she decided not to purchase a new dryer because there were issues between the parties. For instance, Mr Wickins’ guest damaged the fire doors.
In my view, Ms Chetcuti cannot use the fact that she declared the dryer door hinge had a problem in the tenancy agreement as a shield. She is an experienced landlord and must know that her legal responsibility includes maintaining the facilities as required during the tenancy.
Accordingly, I am satisfied that, on the balance of probabilities, the dryer was not in good order during the tenancy.
Given the situation, it is appropriate to compensate Mr. Wickins for the inconvenience he faced. The tenancy agreement was fixed for four months, from 1 May 2023, to 1 September 2023, which equals 17 weeks and four days. Therefore, I award $510 ($30 per week for 17 weeks) as compensation. I have taken into account the fact that Mr. Wickins was still able to use the dryer, but it could stop working unexpectedly because the dryer door hinge was not in good order.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Ms Chetcuti failed to maintain the washing machine and dryer, and I find she committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
In my view, Ms. Chetcuti committed a serious unlawful act as she knew about the issue with the dryer door hinge when the tenancy agreement was entered into. Ms Chetcuit then tried to use it as a shield.
Ms Chetcuti may also have been aware of the washing machine problem, but there is no evidence to confirm when she became aware.
Ms. Chetcuti's failure to maintain the property caused more than just inconvenience to Mr. Wickins during his tenancy.
Accordingly, I consider $1,500 as exemplary damage is appropriate. I have taken into consideration that the tenancy was only for four months. Was Ms Chetcuti’s 14-day notice to remedy a retaliatory notice?
Mr Wickins said the 14-day notice is retaliatory because it was given to him after the fire doors were damaged. He believes that the notice was masked to make it look like it was dated 20 July 2023, but he was given two weeks to vacate the premises. Mr Wickins claims that the notice was a retaliatory action by the landlord.
I do not understand Mr Wickins’ submissions on this claim because he did not vacate the premises until the tenancy ended on 1 September 2023 and 14-day notice to remedy served on him was a notice “to remedy”. It was not a notice “to terminate”.
Accordingly, I find the landlord’s 14-day notice to remedy was not retaliatory. Mr Wickins’ claim under this heading is dismissed.

Did Ms Chetcuti lodge the bond with the Bond Centre?

Carl Bernard Wickins claims the landlord did not lodge the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
Ms. Chetcuti admitted that she failed to send the bond payment to the Bond Centre within 23 working days after receiving the $900 bond.
As a result, she committed an unlawful act. However, it is worth noting that the breach was a technical one. In my view, awarding exemplary damages is not appropriate under the circumstances.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I asked Ms Chetcuti why she did not send the bond to the Bond Centre, and she explained that she was waiting for Mr Wickins to sign the bond form. As an experienced landlord, I struggled to understand her explanation. There were other options available, such as contacting the Bond Centre to lodge the money first in the absence of Mr Wickins’ signature.
I was also confused why Ms Chetcuti later lodged only $9 with the Bond Centre instead of the full $900. She said she wanted to get a "bond number," but why this was so important to her was unclear.
I acknowledge that the Bond Centre requires Mr Wickins to sign the bond lodgement form for good reasons. One reason is that Mr Wickins’ signature is then on the file for comparison purposes.
Based on my assessment of the evidence and the facts, if Mr Wickins had signed the bond lodgement form promptly, Ms Chetcuti would likely have lodged the bond within 23 working days after receiving payment. Therefore, exemplary damages are not appropriate in the circumstances of this breach.
As I have indicated above, Ms Chetcuti’s breach is technical rather than a disregard for her legal responsibility under section 19(1) RTA. No water supply
Mr Wickins claimed that there was no water supply in his apartment for at least seven days, while Ms Chetcuti disputed this and said that the water supply was out for six days.
Ms Chetcuti accepted that Mr Wickins notified her about the washing machine issue on Friday, 10 August 2023, and had her contractor attend to the issue the next day. However, the water supply was not fully rectified until Thursday, 18 August 2023. Based on the plumber's invoice, I found that the water supply was out for a week between 11 August and 17 August 2023.
The main issue was not whether Ms Chetcuti maintained the premises or facilities, but that Mr Wickins did not have water for a week.
Mr Tanner, Ms Chetcuti's contractor, deposed that he told Mr Wickins he could use the shower facilities on level 8 until the shower mixer issue was fixed, but Mr Wickins said he could stay at his girlfriend's place instead.
Mr. Wickins stated that he had to make other arrangements to take a shower because it was not appropriate for him to stay at his girlfriend's place, as she had a teenage daughter living with her. However, Mr. Wickins did not provide any evidence to support the alternative arrangements he made during this time.
Ms Chetcuti argued that Mr Wickins could use the bathroom and shower on level 8 until the water supply was restored.
In my view, this was not a feasible solution as Mr Wickins was unable to use the toilet and bathroom in his own apartment, which was a major inconvenience. While Ms Chetcuti attempted to address the issue on the same day Mr Wickins reported it, the lack of water supply for seven days caused Mr Wickins significant inconvenience.
Taking into account the circumstances, the appropriate amount to compensate Mr Wickins for the significant inconvenience is $200.
I now turn to Mr Chetcuti’s claims against Mr Wickins.
Ms Chetcuti has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for power?

In the hearing, Ms Chetcuti indicated she was seeking compensation for power usage during the tenancy for $300. However, one of the documents in the bundle admitted into evidence for the hearing had a calculation of $282.14
Ms Chetcuti provided invoices from Mercury Energy because the amount sought was conflicting, and it was unclear why there were differences.
I consider $282.14 accurate because Ms Chetcuti provided a table showing how she reached it. On the other hand, there was no indication of how she arrived at $300.
Mr Wickins is liable for the power arrears for $282.14.

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, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. Replacement keycards
Ms Chetcuti is claiming $120 in compensation for three replacement keycards, each valued at $40. She asserts that Mr Wickins received these keycards during the tenancy. Mr Wickins, on the other hand, disputes this, stating that he only received one keycard initially. He later required a second keycard due to damage to the first one. He says he left it in the apartment when he vacated the premises.
Ms Chetcuti maintains that Mr Wickins was provided with three replacement keycards, but she has not presented any evidence to substantiate this. It is crucial to note that the burden of proof lies with Ms Chetcuti to demonstrate that Mr Wickins had three replacement keycards. Without such evidence, it is insufficient to assert that three replacement keycards were issued to Mr Wickins.
Based on the evidence, I am not satisfied that Mr Wickins was provided with three replacement keycards.
Section 40(1)(e)(iv) RTA states it is Mr Wickins’ responsibility to “return to the landlord all keys...” upon vacating the premises. If he did not obtain consent to leave the keycard in the apartment, Mr Wickins must make the necessary arrangement with Ms Chetcuit to return the keycard to her. For instance, leaving it with the reception by agreement.
Therefore, Mr Wickins is liable for one replacement keycard, which is valued at $40.
I acknowledge that Mr Wickins broke the original keycard that Ms Chetcuti gave him at the beginning of the tenancy. However, there is no evidence that the damage was caused by carelessness or intention. Therefore, I conclude that the original keycard broke in half due to fair wear and tear. Chattels
Ms Chetcuti stated that two sets of Egyptian cotton hotel collection super king sets and a range of hotel collection spa towels, bath towels, facecloths, hand towels, and bathmats were missing at the end of Mr Wickins' tenancy. Ms Chetcuti sought $450 to cover the cost of these missing items. However, Mr Wickins denied taking any of the chattels when he vacated the premises.
The only evidence submitted by Ms Chetcuti was the cost of replacing the missing items, and a notation in the tenancy agreement that stated "linen and towels" were provided at the beginning of the tenancy. There were no details, such as quantity, as to what was provided to Mr Wickins.
Furthermore, there was no pre-inspection report or post-tenancy report to support Ms Chetcuti's claim.
After considering the evidence and submissions presented in the hearing, I was unclear whether there were missing chattels or Mr Wickins was responsible for them. Accordingly, Ms Chetcuti's claim is dismissed.

Is Mr Wickins 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.
Mr. Wickins did not deny allowing his guest into the premises. After reviewing the video and photo evidence of the damage caused by Mr. Wickins' guest, it is apparent that the damage was intentional and occurred during the tenancy.
Mr. Wickins has claimed that he was unaware of the damage caused by his guest and was not involved in the incident. He mentioned that his guest was an old friend who had visited him and that he was sleeping at the time of the damage. He added that his guest came from a remote location in the deep south.
However, Mr. Wickins' lack of knowledge about his guest's actions or whereabouts does not absolve him of his liability. The damage was caused during Mr. Wickins' tenancy, and his guest was on the premises with his invitation. He has not disproved liability for the damage, which is more than fair wear and tear.
After reviewing the invoice submitted for this claim, I have found that the tradesperson replaced two stair fire doors on level 9, repaired a roof door on level 9, and replaced a closer on level 8. No locks were replaced. The invoice total is $8,569.53, which includes an offsite fee of 10% or $779.05.
There is no breakdown for the offsite fee. As I understand it, the offsite fee is the tradesperson’s operating cost. I do not consider the offsite fee to have an association with the repair job. I have reduced the invoice amount to $7,790.48.
The amounts ordered are proved.
I would have taken into account depreciation and betterment when calculating the claimed amount. However, fire doors are not frequently used by tenants in the apartment complex, and they are durable and can last for a long time.
Accordingly, I am not minded to make further reduction for betterment and depreciation because Ms Chetcuti should be returned to the position she would have been in had Mr Wickins not breached his obligations, and should not be better or worse off. Filing fee
Both parties have succeeded in their respective applications. Costs lie where they fall. Name suppression
Both parties have applied to suppress their names. However, the decision to grant such an application is not to be taken lightly. It can only be done if the party has achieved significant success in the proceedings, unless it is in the public interest to publish their name or their conduct justifies it.
I acknowledge that both parties have achieved success in their respective applications, albeit at different levels of success.
After carefully considering the entire case, I have concluded that it is in the public interest to publish the party's name and identify particulars. This decision is based on the following reasons: a. Firstly, Mr. Wickins' guest intentionally damaged the fire doors on levels 8 and 9, incurring significant costs. Furthermore, Mr. Wickins' apartment is located on level 15, and it is unclear why his guest would leave his apartment in the middle of the night and travel to levels 8 and 9. b. Secondly, Ms. Chetcuti is an experienced landlord. She cannot use the tenancy agreement to shield herself when she knew before renting the property that the dryer door hinge was faulty. She may or may not already know the washing machine was not working properly. She is running a rental business, and cost-saving consideration does not override the landlord’s legal responsibility under RTA
For the reasons above, it is in the public interest to publish their names and identifying particulars.
The application for name suppression from both parties is declined.

Tenancy Tribunal case 4719801 — Property damage at Unit/Flat 1506, 1 Courthouse Lane, Auckland Central,

At a glance

Tenancy Tribunal case 4719801 — Property damage at Unit/Flat 1506, 1 Courthouse Lane, Auckland Central,

At a glance

Award balance

Claims & awards

Order

Reasons

What is the standard of proof?

Did the landlord fail to maintain the facilities?

Did Ms Chetcuti lodge the bond with the Bond Centre?

How much is owed for power?

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

Is Mr Wickins responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

What is the standard of proof?

Did the landlord fail to maintain the facilities?

Did Ms Chetcuti lodge the bond with the Bond Centre?

How much is owed for power?

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

Is Mr Wickins responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions