What was the outcome of Tenancy Tribunal case 4788239?

The tribunal order states: Mark Stuart Hendry and Olena Hendry to pay Brickntile Limited As Agent For

How much money was awarded in case 4788239?

Rent Arrears: $972.79 awarded to landlord; Water Rates: $380.12 awarded to landlord

What type of tenancy dispute was case 4788239?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4788239?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10101325-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4788239?

The tribunal order states: Mark Stuart Hendry and Olena Hendry to pay Brickntile Limited As Agent For

How much money was awarded in case 4788239?

Rent Arrears: $972.79 awarded to landlord; Water Rates: $380.12 awarded to landlord

What type of tenancy dispute was case 4788239?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4788239?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10101325-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 23 Stanley Road, Glenfield, Auckland 0629 Tenancy Tribunal Case 4788239 — Rent arrears

Claims and awards in Tenancy Tribunal application 4788239 — net $1,352.91 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as at end of tenancy	$972.79	Rent arrears as at end of tenancy
Water rates as at end of tenancy	$380.12	Water rates as at end of tenancy
Net award	$1,352.91
Bond	$2,440.00
Total payable by Tenant to Landlord	$1,352.91

Order

Mark Stuart Hendry and Olena Hendry to pay Brickntile Limited As Agent For Sida Chen & Liyuan Li $1,352.91 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,440.00 (5116679-001) immediately apportioned as follows: Brickntile Limited As Agent For Sida Chen & Liyuan Li: $1,352.91 Mark Stuart Hendry and Olena Hendry: $1,087.09
Brickntile Limited As Agent For Sida Chen & Liyuan Li must facilitate the tenants removing the tenants goods as follows: 2024.
The landlord may dispose of any tenant goods left on the premises after 11:59pm on 1 April 2024, how the landlord sees fit.

Reasons

The Tribunal must consider applications filed by both the landlord and tenant. There was a fire at the premises, which has largely destroyed the premises, but certainly the premises are not habitable. The landlord has claimed for rent arrears and for water charges. The tenant seeks compensation and other orders in relation to the fire. Both parties seek orders in relation to tenant goods still on the premises.
Both parties appeared at the hearing today.

BACKGROUND

The tenancy commenced on 23 December 2019. The landlords are Sida Chen and Liyuan Li, by way of an agent, Brickn Tile Limited. The tenants are Mark Hendry and Lena Hendry.
On 4 November 2023 there was a fire start in the garage. I have not received any reports in relation to the fire, but both parties are in agreement that it started from an electrical fault, and probably in relation to the garage door opening mechanism or associated electrical equipment.
Thankfully nobody was injured in the fire. However the evidence from the parties is that the garage was extensively damaged, and the inside of the house also damaged but to a lesser degree. From what the parties tell me, it is likely the house will need to be demolished.
It is the case however that the parties have been unable to agree on how any tenant goods are to be removed from the premises, and I will discuss that further 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.

RENT ARREARS

The landlord has applied for an order that the tenant pay rent arrears of $972.79. The landlord has provided the Tribunal with a rent ledger.
In response to the landlords rent claim, the tenant stated he was not able to say that the ledger is right or wrong, he simply does not know.
The RTA requires that landlords keep business like records in relation to rent payments, and I am satisfied that these records meet that criteria. I have no reason to consider the records are wrong in any way, certainly the tenant has not provided any information that would lead me to a conclusion that the rent ledger is wrong. I have no reason to consider that record to be incorrect, so I accept the landlords rent arrears claim, the rent arrear claimed are ordered in full.

WATER RATES

The landlord also seeks an order that the tenant pay water rates.
The evidence is that from September the tenant took over the payment of water rates directly to Water Care. The payments the tenant reports making show on the water rates account. At the end of the tenancy the outstanding amount on the water account is $380.12. I note that invoice is dated 3 November 2023, the day prior to the fire.
The landlords water ledger records that the tenant owes $440.02 in water charges as of 30 August 2023, however the landlord is prepared to waive those charges, and only seeks the payment from the invoiced amounts on the water invoice from 1 September 2023.
I accept that the tenant owes the amount set out in the 3 November 2023 invoice, so that is ordered in full.

COMPENSATION

With any claim for compensation, to receive an order the applicant (tenant) must incur a loss, and that loss must result from a breach on the part of the respondent (landlord).
In this case the tenant seeks compensation in relation to the losses incurred from the fire. There would be no doubt that the losses for the tenant and his family would be very significant, and the tenant advised they were uninsured.
As I explained to the tenant at the hearing today, in order for me to make an order that the landlord compensate the tenant for his loss, there would need to be evidence that that loss, such as the loss of property from the fire, occurred as a result of some breach of an obligation on the part of the landlord.
The problem for the tenant, is that there is insufficient evidence establishing a breach on the part of the landlord. Certainly there was a fire in the dwelling which I accept arose from an electrical fault, but that of itself does not prove that there has been a breach on the part of the landlord. It is possible that the fire arose from some negligent act, or it may have been the result of some inherent fault with an item like the garage door opener, or rats or mice eating cables etc – I simply do not know.
Ultimately it is the tenant who must prove a breach on the part of the landlord and I find he has not done so.
The tenant states that there were issues with circuit breakers tripping at the tenancy, and states that this was raised with the landlord in an email from 9 June 2022. That email was in relation to the installation of a heat pump. It is difficult for me to draw any conclusions from that email, or more particularly to relate the likely cause of the fire to be associated with the same issues that caused the circuit breakers to trip. As I have noted above I have not been provided with any evidence from a properly qualified person who has assessed the electrical system identifying the cause of the fire, and relating that to any obligation the landlord had. I only have the oral evidence from the tenant on this matter.
I have considerable sympathy for the tenant and his family, their losses will be difficult to quantify, but they will be huge. But on the evidence before me I am not able to order the landlord to pay the tenant compensation for those losses.

GOODS

There is an issue for both parties around tenant goods left on the premises.
Section 40 of the RTA sets out the tenant’s responsibilities, and that includes that “on the termination of the tenancy [the tenant] remove all his or her goods from the premises”.
In the vast majority of cases this provision comes into play because the tenancy has ended when the tenants move to another property as opposed to being forced out of the premises following a fire as occurred for Mr Hendry and his family. But this obligation still remains for a tenant impacted by fire, but of course there should be a sense of realism and practicality around the challenges a tenant will face removing their belongings from a fire damaged building.
The tenant requests that he be given until the end of the Easter break to remove their goods, in the circumstances that is reasonable, and will be reflected in my goods order.
The tenant raised an issue where the garage door is boarded up, I understand that was done by the insurer, no doubt for security reasons. It is reasonable that the landlord remove the ply for the tenant to access the inside of the garage in order to remove his goods. I consider a reasonable period for that to occur would be a 24 hour period, but recognise the tenant wanted longer. But it would also be reasonable to require the tenant to take responsibility for ensuring the premise remain secure that period.
The tenant also seeks orders round health and safety of tenant goods remaining in the premises, and for their safety while they are inside the fire damage building. The Tribunal cannot make those orders. As I noted today, this is not an area where the Tribunal has expertise in, and nor are there reports or expert advice around health and safety. All I can say is that the parties will need to take obtain their own advice around health and safety considerations with goods in the premises, or safety accessing the building.
However, the landlord wants the tenants good removed, that is understandable. I will make orders allowing that. But ultimately if the tenant has not removed their goods following the end of the Easter weekend, then at that point the landlord will be authorised to dispose of any goods remaining in the dwelling.

Claims and awards in Tenancy Tribunal application 4788239 — net $1,352.91 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as at end of tenancy	$972.79	Rent arrears as at end of tenancy
Water rates as at end of tenancy	$380.12	Water rates as at end of tenancy
Net award	$1,352.91
Bond	$2,440.00
Total payable by Tenant to Landlord	$1,352.91

Order

Mark Stuart Hendry and Olena Hendry to pay Brickntile Limited As Agent For Sida Chen & Liyuan Li $1,352.91 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,440.00 (5116679-001) immediately apportioned as follows: Brickntile Limited As Agent For Sida Chen & Liyuan Li: $1,352.91 Mark Stuart Hendry and Olena Hendry: $1,087.09
Brickntile Limited As Agent For Sida Chen & Liyuan Li must facilitate the tenants removing the tenants goods as follows: 2024.
The landlord may dispose of any tenant goods left on the premises after 11:59pm on 1 April 2024, how the landlord sees fit.

Reasons

The Tribunal must consider applications filed by both the landlord and tenant. There was a fire at the premises, which has largely destroyed the premises, but certainly the premises are not habitable. The landlord has claimed for rent arrears and for water charges. The tenant seeks compensation and other orders in relation to the fire. Both parties seek orders in relation to tenant goods still on the premises.
Both parties appeared at the hearing today.

BACKGROUND

The tenancy commenced on 23 December 2019. The landlords are Sida Chen and Liyuan Li, by way of an agent, Brickn Tile Limited. The tenants are Mark Hendry and Lena Hendry.
On 4 November 2023 there was a fire start in the garage. I have not received any reports in relation to the fire, but both parties are in agreement that it started from an electrical fault, and probably in relation to the garage door opening mechanism or associated electrical equipment.
Thankfully nobody was injured in the fire. However the evidence from the parties is that the garage was extensively damaged, and the inside of the house also damaged but to a lesser degree. From what the parties tell me, it is likely the house will need to be demolished.
It is the case however that the parties have been unable to agree on how any tenant goods are to be removed from the premises, and I will discuss that further 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.

RENT ARREARS

The landlord has applied for an order that the tenant pay rent arrears of $972.79. The landlord has provided the Tribunal with a rent ledger.
In response to the landlords rent claim, the tenant stated he was not able to say that the ledger is right or wrong, he simply does not know.
The RTA requires that landlords keep business like records in relation to rent payments, and I am satisfied that these records meet that criteria. I have no reason to consider the records are wrong in any way, certainly the tenant has not provided any information that would lead me to a conclusion that the rent ledger is wrong. I have no reason to consider that record to be incorrect, so I accept the landlords rent arrears claim, the rent arrear claimed are ordered in full.

WATER RATES

The landlord also seeks an order that the tenant pay water rates.
The evidence is that from September the tenant took over the payment of water rates directly to Water Care. The payments the tenant reports making show on the water rates account. At the end of the tenancy the outstanding amount on the water account is $380.12. I note that invoice is dated 3 November 2023, the day prior to the fire.
The landlords water ledger records that the tenant owes $440.02 in water charges as of 30 August 2023, however the landlord is prepared to waive those charges, and only seeks the payment from the invoiced amounts on the water invoice from 1 September 2023.
I accept that the tenant owes the amount set out in the 3 November 2023 invoice, so that is ordered in full.

COMPENSATION

With any claim for compensation, to receive an order the applicant (tenant) must incur a loss, and that loss must result from a breach on the part of the respondent (landlord).
In this case the tenant seeks compensation in relation to the losses incurred from the fire. There would be no doubt that the losses for the tenant and his family would be very significant, and the tenant advised they were uninsured.
As I explained to the tenant at the hearing today, in order for me to make an order that the landlord compensate the tenant for his loss, there would need to be evidence that that loss, such as the loss of property from the fire, occurred as a result of some breach of an obligation on the part of the landlord.
The problem for the tenant, is that there is insufficient evidence establishing a breach on the part of the landlord. Certainly there was a fire in the dwelling which I accept arose from an electrical fault, but that of itself does not prove that there has been a breach on the part of the landlord. It is possible that the fire arose from some negligent act, or it may have been the result of some inherent fault with an item like the garage door opener, or rats or mice eating cables etc – I simply do not know.
Ultimately it is the tenant who must prove a breach on the part of the landlord and I find he has not done so.
The tenant states that there were issues with circuit breakers tripping at the tenancy, and states that this was raised with the landlord in an email from 9 June 2022. That email was in relation to the installation of a heat pump. It is difficult for me to draw any conclusions from that email, or more particularly to relate the likely cause of the fire to be associated with the same issues that caused the circuit breakers to trip. As I have noted above I have not been provided with any evidence from a properly qualified person who has assessed the electrical system identifying the cause of the fire, and relating that to any obligation the landlord had. I only have the oral evidence from the tenant on this matter.
I have considerable sympathy for the tenant and his family, their losses will be difficult to quantify, but they will be huge. But on the evidence before me I am not able to order the landlord to pay the tenant compensation for those losses.

GOODS

There is an issue for both parties around tenant goods left on the premises.
Section 40 of the RTA sets out the tenant’s responsibilities, and that includes that “on the termination of the tenancy [the tenant] remove all his or her goods from the premises”.
In the vast majority of cases this provision comes into play because the tenancy has ended when the tenants move to another property as opposed to being forced out of the premises following a fire as occurred for Mr Hendry and his family. But this obligation still remains for a tenant impacted by fire, but of course there should be a sense of realism and practicality around the challenges a tenant will face removing their belongings from a fire damaged building.
The tenant requests that he be given until the end of the Easter break to remove their goods, in the circumstances that is reasonable, and will be reflected in my goods order.
The tenant raised an issue where the garage door is boarded up, I understand that was done by the insurer, no doubt for security reasons. It is reasonable that the landlord remove the ply for the tenant to access the inside of the garage in order to remove his goods. I consider a reasonable period for that to occur would be a 24 hour period, but recognise the tenant wanted longer. But it would also be reasonable to require the tenant to take responsibility for ensuring the premise remain secure that period.
The tenant also seeks orders round health and safety of tenant goods remaining in the premises, and for their safety while they are inside the fire damage building. The Tribunal cannot make those orders. As I noted today, this is not an area where the Tribunal has expertise in, and nor are there reports or expert advice around health and safety. All I can say is that the parties will need to take obtain their own advice around health and safety considerations with goods in the premises, or safety accessing the building.
However, the landlord wants the tenants good removed, that is understandable. I will make orders allowing that. But ultimately if the tenant has not removed their goods following the end of the Easter weekend, then at that point the landlord will be authorised to dispose of any goods remaining in the dwelling.

Tenancy Tribunal case 4788239 — Rent arrears at Unit/Flat 2, 23 Stanley Road, Glenfield, Auckland 0629

At a glance

Tenancy Tribunal case 4788239 — Rent arrears at Unit/Flat 2, 23 Stanley Road, Glenfield, Auckland 0629

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT ARREARS

WATER RATES

COMPENSATION

GOODS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

RENT ARREARS

WATER RATES

COMPENSATION

GOODS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions