What was the outcome of Tenancy Tribunal case 4743449?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4743449?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4743449?

The dispute type was not classified.

Where can I read the official tribunal order for case 4743449?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10439977-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4743449?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4743449?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4743449?

The dispute type was not classified.

Where can I read the official tribunal order for case 4743449?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10439977-Tribunal_Order.pdf.

Unit/Flat 10, 50 Gray Avenue, Mangere East, Auckland Tenancy Tribunal Case 4743449 — Tenancy dispute

Order

The landlord’s application is dismissed.

Reasons

The application relates to a current tenancy. The landlord claimed the insurance excess of $550.00 for damage to the garage door of the premises. The tenant denied damaging the door and said it was caused by a neighbour driving into it. The tenant was out at the time and did not see this alleged event.
The tenant said another neighbour witnessed what happened. The first hearing on 4 April 2024 was adjourned so the tenant could obtain a signed written statement from this witness. On 17 April 2024 the tenant provided time-stamped photographs of the neighbour’s car. She said she was still waiting on a letter from the witness.
The tenant did not attend the further hearing on 23 May 2024. The second hearing was again adjourned to give the tenant a final opportunity to produce a signed witness statement by 7 June 2024. There has been no further communication from the tenant.
The tenant said the property opposite hers (7/50) has a blue car. The photographs said to be of the neighbour’s car were taken on 27 August 2023 at
22am. The photographs show small areas of red smudging around the left and right-hand sides of the front registration plate. There may also be red staining on the silver bumper. The bottom half of the tenant’s garage door, where it was damaged, is red. The tenant said the neighbour’s garage door is green.
The inference the Tribunal is impliedly invited to draw, is that the neighbour’s blue car hit the garage door and came away with red paint on the front registration plate.
The landlord has the burden of proving, to the civil standard, that there was damage to the premises that is more than fair wear and tear. If that is established, it is then for the tenant to prove that the damage was not caused by an intentional or careless act of the tenant or a person for whose actions they are responsible.
There is clearly damage to the garage door in the form of a large dent. The damage is more than fair wear and tear. The issue is whether the damage was caused by the tenant. As I read section 49B of the Residential Tenancies Act 1986, the onus is on the tenant to prove that they did not cause the damage (carelessly or intentionally).
The tenant attended the first hearing in person and said she had spoken to all three of her neighbours at their end of the driveway, and no one took responsibility. There is no compelling reason to disbelieve the tenant when she says she did not damage the door. The landlord did not suggest that the tenant had failed to report the damage, been in any way obstructive about its discovery, or had earlier made any statements inconsistent with the explanation provided in the hearing.
I acknowledge that the minimal damage to the front of the neighbour’s car may be difficult to reconcile with the photograph of the garage door, which shows a meaningful impact, although the door is still in place. It might be thought that there would be more damage to the front of the neighbour’s car than a few splashes of paint. On the other hand, the garage door looks old. I consider it would be speculative to draw any firm conclusions. The neighbour’s car does appear to have red paint on the number plate, consistent with contact with the garage door. The garage door was damaged at low level, at about the same height. The tenant said the neighbour removed these marks after she accused them of the damage. Although made in the tenant’s own interest, it does not follow that the statement is untrue.
I have also considered whether the failure to present a witness statement means an evidential inference should be drawn against the tenant. I consider it would only be appropriate to draw an adverse factual inference if the witness had been willing to give evidence but was not called to do so. At the first hearing the tenant was trying to obtain a statement from the witness. I had the impression there was concern about their identity becoming known. It is unclear why a statement was not ultimately provided. In these circumstances, I decline to draw an adverse inference.
For these reasons, I find that the tenant has disproved liability for damage to the garage door. The limited evidence suggests the door could well have been damaged by a third party.

Order

The landlord’s application is dismissed.

Reasons

The application relates to a current tenancy. The landlord claimed the insurance excess of $550.00 for damage to the garage door of the premises. The tenant denied damaging the door and said it was caused by a neighbour driving into it. The tenant was out at the time and did not see this alleged event.
The tenant said another neighbour witnessed what happened. The first hearing on 4 April 2024 was adjourned so the tenant could obtain a signed written statement from this witness. On 17 April 2024 the tenant provided time-stamped photographs of the neighbour’s car. She said she was still waiting on a letter from the witness.
The tenant did not attend the further hearing on 23 May 2024. The second hearing was again adjourned to give the tenant a final opportunity to produce a signed witness statement by 7 June 2024. There has been no further communication from the tenant.
The tenant said the property opposite hers (7/50) has a blue car. The photographs said to be of the neighbour’s car were taken on 27 August 2023 at
22am. The photographs show small areas of red smudging around the left and right-hand sides of the front registration plate. There may also be red staining on the silver bumper. The bottom half of the tenant’s garage door, where it was damaged, is red. The tenant said the neighbour’s garage door is green.
The inference the Tribunal is impliedly invited to draw, is that the neighbour’s blue car hit the garage door and came away with red paint on the front registration plate.
The landlord has the burden of proving, to the civil standard, that there was damage to the premises that is more than fair wear and tear. If that is established, it is then for the tenant to prove that the damage was not caused by an intentional or careless act of the tenant or a person for whose actions they are responsible.
There is clearly damage to the garage door in the form of a large dent. The damage is more than fair wear and tear. The issue is whether the damage was caused by the tenant. As I read section 49B of the Residential Tenancies Act 1986, the onus is on the tenant to prove that they did not cause the damage (carelessly or intentionally).
The tenant attended the first hearing in person and said she had spoken to all three of her neighbours at their end of the driveway, and no one took responsibility. There is no compelling reason to disbelieve the tenant when she says she did not damage the door. The landlord did not suggest that the tenant had failed to report the damage, been in any way obstructive about its discovery, or had earlier made any statements inconsistent with the explanation provided in the hearing.
I acknowledge that the minimal damage to the front of the neighbour’s car may be difficult to reconcile with the photograph of the garage door, which shows a meaningful impact, although the door is still in place. It might be thought that there would be more damage to the front of the neighbour’s car than a few splashes of paint. On the other hand, the garage door looks old. I consider it would be speculative to draw any firm conclusions. The neighbour’s car does appear to have red paint on the number plate, consistent with contact with the garage door. The garage door was damaged at low level, at about the same height. The tenant said the neighbour removed these marks after she accused them of the damage. Although made in the tenant’s own interest, it does not follow that the statement is untrue.
I have also considered whether the failure to present a witness statement means an evidential inference should be drawn against the tenant. I consider it would only be appropriate to draw an adverse factual inference if the witness had been willing to give evidence but was not called to do so. At the first hearing the tenant was trying to obtain a statement from the witness. I had the impression there was concern about their identity becoming known. It is unclear why a statement was not ultimately provided. In these circumstances, I decline to draw an adverse inference.
For these reasons, I find that the tenant has disproved liability for damage to the garage door. The limited evidence suggests the door could well have been damaged by a third party.

Tenancy Tribunal case 4743449 — Tenancy dispute at Unit/Flat 10, 50 Gray Avenue, Mangere East, Auckland

At a glance

Claims & awards

Tenancy Tribunal case 4743449 — Tenancy dispute at Unit/Flat 10, 50 Gray Avenue, Mangere East, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions