Published tribunal order
Tenancy Tribunal case 4752533 — Tenancy dispute at 11 Rene Place, Sunnyhills, Auckland 2010
Decided 27 Mar 2024 · Published 27 Mar 2024 · Application 4752533
Tenant favoured
Order
- Liang Kevin Deng must pay Yu Bai $2,982.58 immediately, calculated as shown in table below:
- The Bond Centre is to pay the bond of $970.00 (3854893-002) to Yu Bai immediately.
Reasons
- This matter returns to the Tribunal in order to determine the level of utility charges that should be refunded to the tenant, and also to finalise the bond release.
- The Tribunal has issues a previous decision in this case, which is dated 4 December 2023. As set out in that decision, the tenancy started on 1 July DescriptionLandlordTenant Previous order dated 4 December 2024$3,576.00 Utilities reimbursement $6,558.58 Total award$3,576.00$6,558.58 Net award $2,982.58 Bond $970.00 Total payable by Landlord to Tenant $2,982.58 2019, and the rental for the premises was to be $470.00 inclusive of utility charges.
- During the tenancy, the landlord advised the tenant that he would need to pay for the utilities where the tenant would pay for the electricity, and the water charges would be divided in half. In return the rent was to reduce by $10.00 each week. On the basis of the evidence before the Tribunal, I cannot see that the tenant never agreed to vary the tenancy agreement that way, but he did make the payments for utilities separately, and the rent reduced by $10.00.
- At the end of the tenancy both the landlord and tenant filed a range of claims against one another. That came to a hearing, from which the 4 December 2023 decision was issued. In summary both parties had varying degrees of success in the claims. However as far as the utilities are concerned, I determined that the landlord was not able to unilaterally vary the ‘all inclusive’ agreement as he did, which meant the tenant would be liable for the full rentals (was not eligible to the $10 rent reduction), but equally was not liable to pay the landlord for separate utilities.
- I determined that the tenant needed to repay the $10.00 rent reduction, which totalled $1,900.00.
- However I was not able to calculate the utilities charges that needed to be refunded by the landlord, because I did not have sufficient information before me to do that. I left it to the parties to try to agree on what that refund should be, but confirmed that if the parties could not agree on what the refund should be (and what should happen to the bond), that either party could apply for further orders – in short I would decide what was owning and make an order on that if needs be.
- Ultimately the Tribunal determined that the landlord needed to pay the tenant the sum of $3,576.00.
- The tenant advised the parties could not agree on the utilities and bond, so this hearing was scheduled today in order for me to decide what utilities should be refunded by the landlord, and to order the bond release.
TENANTS CASE
- Mr Bai provided a ledger of payments made, mostly bank transfers, but there were two cash payments. Supporting evidence was provided in relation to the claimed payments, and communications with the landlord about those charges. That totalled $6,558.58 of utility charges.
LANDLORDS CASE
- The landlord advised that he disagreed that he should be liable to repay the utilities charges, because he considers the tenant did not dispute that he should pay those charges at the time, so therefore must have agreed to them.
- Otherwise the landlord did not identify any particular flaw in the ledger the tenant provided around utility payments.
ANALYSIS
- At the hearing today, both parties advised they were dissatisfied with the orders that were made against them in the December 2023 order. However, as I noted to the parties, if they considered that my original conclusions were wrong, then they needed to appeal the 4 December 2023 decision to the District Court. Once the order is issued it is binding on both parties, unless the District Court overturns the order on appeal. Even if a party could convince me that my original decision was wrong, I could not change it.
- I note for completeness, that any appeal to the District Court needed to be filed within 10 working days after the 4 December 2023 decision was issued, so now the parties are well out of time to appeal. I recognise that the High Court has confirmed that late appeals of Tenancy Tribunal decisions cannot be accepted, but that is not a reason I can now go behind the original order, and consider the findings again.
- What that means is I will not reconsider any of the original findings, and that means my decision that the utilities should be refunded to the tenant remains. All that is left is to calculate what the amount of the refund should be.
- The tenant has submitted a ledger showing payments, supported by other evidence, which shows that total utilities payments were $6,558.58. The landlord has not identified any flaw in the tenants assessment of payments, and I have no reason not to accept it, and therefore a refund of that amount is ordered. Bond
- The bond is still in the bond centre, and is $970.00. It is the case that the bond the tenant paid was $940.00, so the landlord has overpaid the bond. Nevertheless the landlord now owes money to the tenant given this order, so it is appropriate that I order the full bond held to be paid to the tenant to offset the landlords debt.