What was the outcome of Tenancy Tribunal case 4830817?

The tribunal order states: Nichola Odlin, Roy Anthony Milton and Michael Charles Kirk must pay Central

How much money was awarded in case 4830817?

Cleaning: $588.23 awarded to landlord; Cleaning: $411.76 awarded to landlord; Property Damage: $292.73 awarded to landlord; Rent Arrears: $6,139.00 awarded to landlord

What type of tenancy dispute was case 4830817?

The primary dispute was Rent arrears. Related themes: Cleanliness, Property damage.

Where can I read the official tribunal order for case 4830817?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10882715-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4830817?

The tribunal order states: Nichola Odlin, Roy Anthony Milton and Michael Charles Kirk must pay Central

How much money was awarded in case 4830817?

Cleaning: $588.23 awarded to landlord; Cleaning: $411.76 awarded to landlord; Property Damage: $292.73 awarded to landlord; Rent Arrears: $6,139.00 awarded to landlord

What type of tenancy dispute was case 4830817?

The primary dispute was Rent arrears. Related themes: Cleanliness, Property damage.

Where can I read the official tribunal order for case 4830817?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10882715-Tribunal_Order.pdf.

28 Blackbridge Road, Dairy Flat, RD 4, Dairy Flat 0794 Tenancy Tribunal Case 4830817 — Rent arrears

Claims and awards in Tenancy Tribunal application 4830817 — net $2,691.72 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 20 February 2024	$6,139.00	Rent arrears to 20 February 2024
Cleaning	$588.23	Cleaning
Cleaning external windows	$411.76	Cleaning external windows
Replacement door lock	$292.73	Replacement door lock
Net award	$2,691.72
Total payable by Tenant to Landlord	$2,691.72

Order

Nichola Odlin, Roy Anthony Milton and Michael Charles Kirk must pay Central Property Management Limited $2,691.72 immediately, calculated as shown in the table below:
The Bond Centre is to pay the bond of $4,740.00 (5688780-002) to Central Property Management Limited immediately.
Nichola Odlin’s cross application (No. 4830817) is dismissed.
Central Property Management Limited’s claims for compensation for steam cleaning of the carpet and the exterior house wash are dismissed.

Reasons

The landlord attended the hearing. The tenant did not attend the hearing. The tenant has not communicated with the Tribunal as to why they would not attend the hearing and the hearing proceeded in their absence.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Cross-application:
One of the tenants, Nicola Odlin, filed a cross application (No. 4830817) for breach of the healthy home standards and failure to maintain the property.
Nicola Odlin did not attend the hearing at the scheduled time, nor did she request an adjournment. At the start of the hearing, an attempt was made to contact Nicola Odlin by telephone. However, the call went to answerphone.
Nicola Odlin’s application is dismissed in accordance with sections 78(1)(i) and 92(1) of the Residential Tenancies Act 1986 (RTA).

How much is owed for rent?

The tenancy ended on 20 February 2024. The landlord provided rent records in the form of a rent ledger which prove the unpaid rent at termination was $8,770.00. However, that is not the end of the matter. It is also necessary to consider if the landlord has mitigated its losses.
Section 49 of the Residential Tenancies Act 1986 (RTA) provides: Mitigation of damage or loss Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The question then becomes, what are the rules of law relating to mitigation of loss or damage following a contract breach? The rules of law are summarised in Halsbury’s Laws of England (4th ed, 1975) vol 12 at [1193]–[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. “The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.”
In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689, Lord Haldane described the rule as to mitigation of loss as follows: That the law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate is a question of fact dependent upon the particular circumstances of each case.
In the case of Huang v Ashworth [2024] NZDC 15726, the District Court confirmed there is a duty to mitigate for rent arrears. The Court confirmed the test of what the landlord ought to do to mitigate its loss is a factual one and depends on: a. Whether the landlord took all reasonable steps to mitigate its loss; and b. More particularly, whether it acted reasonably having regard to all the circumstances of the case.
Accordingly, where the tenant fails to pay rent owing, there is an obligation on the landlord to mitigate the loss. This can be achieved by not allowing the arrears to continue to accrue, instead ending the tenancy and reletting the premises thereby preventing ongoing loss.
The tenant was continuously in arrears from 15 December 2022. I note that the landlord was entitled, at any time from the point when the rent was 21 days or more in arrears (in this case 05 January 2022) to apply to the Tribunal under section 55(1)(a) or section 56 of the RTA to have the tenancy terminated. However, the landlord did not do so and the tenancy was permitted to continue until 20 February 2024.
The landlord was asked at the hearing what steps were taken to recover the rent arrears. The landlord advised that the tenant was issued with several 14-day notices to pay outstanding rent and provided two of these notices dated 09 January 2023 and 09 September 2023. The landlord advised that it did not wish to evict the tenants because there was a reasonable relationship between the parties and the bond was of a substantial amount.
I consider the landlord should have done more to mitigate its losses and that a landlord, acting reasonably, would have taken steps to terminate the tenancy in accordance with section 55(1)(a) or section 56 of the RTA. I have applied a reduction of 30% to the rent arrears to reflect the landlord’s failure to mitigate its losses.

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

The landlord is seeking compensation for: steam cleaning of the carpets; general cleaning of the interior of the premises; and cleaning of the exterior of the premises and the exterior windows.
Section 45(1)(a) of the RTA requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness and there is an equivalent obligation on the tenant to return the premises at the end of the tenancy: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
The RTA does not require the premises to be provided / returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
The Tribunal will also take into account factors such as the length of the tenancy, and the general condition of the premises (for example, surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particular with paint work).
The onus for establishing the claim, sits with the person making it. If the landlord is seeking to recover costs for cleaning, it is the landlord who must prove that the tenant has breached their obligations under the RTA with how the premises were returned at the end of the tenancy. If the landlord does not establish a breach to the balance of probability, then their claim will be dismissed. a) Steam cleaning of the carpet:
The landlord is claiming $650 plus GST for steam cleaning the carpet. The landlord advised that the carpet is around 8-9 years old and has provided photographs from after the tenant vacated the premises showing that the carpet had several stains and other marks. The landlord has provided photographs which it says were taken by the previous property manager shortly after the tenant moved into the premises. As the property is fully furnished in the photographs taken at the start of the tenancy, it is difficult to see if the carpet was stained at the time the tenant moved in.
The landlord has not satisfied me that it is more likely than not that the tenant is responsible for the stains and other marks on the carpet. This claim is dismissed. b) General cleaning of the premises:
The landlord is seeking compensation for general cleaning of the inside of the premises, including cleaning of the internal windows. The landlord’s post tenancy photographs show the premises were not left reasonably clean and tidy. The landlord has provided an invoice for $2200.00 plus GST for general cleaning. I consider this sum to be excessive. At $50 per hour plus GST this would be 44 hours of work. I consider 10 hours at $50 plus GST per hour for internal cleaning of the property to be reasonable.
This claim is proved and I award $588.23 (including GST) for this claim. c) Exterior house wash and cleaning of exterior windows:
The landlord is seeking $1,500.00 plus GST for “exterior house wash + exterior windows”. The landlord has provided an invoice for this work. The landlord has also provided photographs taken at the end of the tenancy showing the exterior of the windows and the house were not reasonably clean and tidy.
I have two issues with the claim for the exterior house wash: it is not the tenant’s responsibilities to clean the outside of the house; and the photographs the landlord says were taken by the previous agent at the end of the tenancy do not show the outside of the premises. Therefore, I do not have any comparison photographs. The claim for the exterior house wash is dismissed.
Tenants are responsible for cleaning the external windows provided they are accessible. The premises is a 4-bedroom, single storey house and the majority of the windows appear to be accessible. I consider 7 hours at $50 plus GST per hour for this work to be reasonable.
This claim is proved, and I award $411.76 (including GST) for this claim.

Is the tenant responsible for the damage to the premises?

Sections 40(2)(a), 41 and 49B of the RTA provide that 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.
Section 49B(3)(a) of the RTA provides that 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).
Section 49B(3)(b) of the RTA provides that 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). Section 49B(3A)(a) of the RTA provides that where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.
Section 49B(1) of the RTA provides that 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.
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.)
The landlord has claimed for a replacement door lock on the sliding door which it says was missing at the end of the tenancy. The landlord provided a photograph showing the missing door lock and an invoice for the replacement lock. I am satisfied that this damage occurred during the tenancy and is more than fair wear and tear. The tenant has not disproved that the damage was careless or intentional. This claim is proved, and I award $292.73 (including GST) for this claim.
Central Property Management Limited has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee.

Claims and awards in Tenancy Tribunal application 4830817 — net $2,691.72 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 20 February 2024	$6,139.00	Rent arrears to 20 February 2024
Cleaning	$588.23	Cleaning
Cleaning external windows	$411.76	Cleaning external windows
Replacement door lock	$292.73	Replacement door lock
Net award	$2,691.72
Total payable by Tenant to Landlord	$2,691.72

Order

Nichola Odlin, Roy Anthony Milton and Michael Charles Kirk must pay Central Property Management Limited $2,691.72 immediately, calculated as shown in the table below:
The Bond Centre is to pay the bond of $4,740.00 (5688780-002) to Central Property Management Limited immediately.
Nichola Odlin’s cross application (No. 4830817) is dismissed.
Central Property Management Limited’s claims for compensation for steam cleaning of the carpet and the exterior house wash are dismissed.

Reasons

The landlord attended the hearing. The tenant did not attend the hearing. The tenant has not communicated with the Tribunal as to why they would not attend the hearing and the hearing proceeded in their absence.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Cross-application:
One of the tenants, Nicola Odlin, filed a cross application (No. 4830817) for breach of the healthy home standards and failure to maintain the property.
Nicola Odlin did not attend the hearing at the scheduled time, nor did she request an adjournment. At the start of the hearing, an attempt was made to contact Nicola Odlin by telephone. However, the call went to answerphone.
Nicola Odlin’s application is dismissed in accordance with sections 78(1)(i) and 92(1) of the Residential Tenancies Act 1986 (RTA).

How much is owed for rent?

The tenancy ended on 20 February 2024. The landlord provided rent records in the form of a rent ledger which prove the unpaid rent at termination was $8,770.00. However, that is not the end of the matter. It is also necessary to consider if the landlord has mitigated its losses.
Section 49 of the Residential Tenancies Act 1986 (RTA) provides: Mitigation of damage or loss Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The question then becomes, what are the rules of law relating to mitigation of loss or damage following a contract breach? The rules of law are summarised in Halsbury’s Laws of England (4th ed, 1975) vol 12 at [1193]–[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. “The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.”
In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689, Lord Haldane described the rule as to mitigation of loss as follows: That the law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate is a question of fact dependent upon the particular circumstances of each case.
In the case of Huang v Ashworth [2024] NZDC 15726, the District Court confirmed there is a duty to mitigate for rent arrears. The Court confirmed the test of what the landlord ought to do to mitigate its loss is a factual one and depends on: a. Whether the landlord took all reasonable steps to mitigate its loss; and b. More particularly, whether it acted reasonably having regard to all the circumstances of the case.
Accordingly, where the tenant fails to pay rent owing, there is an obligation on the landlord to mitigate the loss. This can be achieved by not allowing the arrears to continue to accrue, instead ending the tenancy and reletting the premises thereby preventing ongoing loss.
The tenant was continuously in arrears from 15 December 2022. I note that the landlord was entitled, at any time from the point when the rent was 21 days or more in arrears (in this case 05 January 2022) to apply to the Tribunal under section 55(1)(a) or section 56 of the RTA to have the tenancy terminated. However, the landlord did not do so and the tenancy was permitted to continue until 20 February 2024.
The landlord was asked at the hearing what steps were taken to recover the rent arrears. The landlord advised that the tenant was issued with several 14-day notices to pay outstanding rent and provided two of these notices dated 09 January 2023 and 09 September 2023. The landlord advised that it did not wish to evict the tenants because there was a reasonable relationship between the parties and the bond was of a substantial amount.
I consider the landlord should have done more to mitigate its losses and that a landlord, acting reasonably, would have taken steps to terminate the tenancy in accordance with section 55(1)(a) or section 56 of the RTA. I have applied a reduction of 30% to the rent arrears to reflect the landlord’s failure to mitigate its losses.

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

The landlord is seeking compensation for: steam cleaning of the carpets; general cleaning of the interior of the premises; and cleaning of the exterior of the premises and the exterior windows.
Section 45(1)(a) of the RTA requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness and there is an equivalent obligation on the tenant to return the premises at the end of the tenancy: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
The RTA does not require the premises to be provided / returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
The Tribunal will also take into account factors such as the length of the tenancy, and the general condition of the premises (for example, surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particular with paint work).
The onus for establishing the claim, sits with the person making it. If the landlord is seeking to recover costs for cleaning, it is the landlord who must prove that the tenant has breached their obligations under the RTA with how the premises were returned at the end of the tenancy. If the landlord does not establish a breach to the balance of probability, then their claim will be dismissed. a) Steam cleaning of the carpet:
The landlord is claiming $650 plus GST for steam cleaning the carpet. The landlord advised that the carpet is around 8-9 years old and has provided photographs from after the tenant vacated the premises showing that the carpet had several stains and other marks. The landlord has provided photographs which it says were taken by the previous property manager shortly after the tenant moved into the premises. As the property is fully furnished in the photographs taken at the start of the tenancy, it is difficult to see if the carpet was stained at the time the tenant moved in.
The landlord has not satisfied me that it is more likely than not that the tenant is responsible for the stains and other marks on the carpet. This claim is dismissed. b) General cleaning of the premises:
The landlord is seeking compensation for general cleaning of the inside of the premises, including cleaning of the internal windows. The landlord’s post tenancy photographs show the premises were not left reasonably clean and tidy. The landlord has provided an invoice for $2200.00 plus GST for general cleaning. I consider this sum to be excessive. At $50 per hour plus GST this would be 44 hours of work. I consider 10 hours at $50 plus GST per hour for internal cleaning of the property to be reasonable.
This claim is proved and I award $588.23 (including GST) for this claim. c) Exterior house wash and cleaning of exterior windows:
The landlord is seeking $1,500.00 plus GST for “exterior house wash + exterior windows”. The landlord has provided an invoice for this work. The landlord has also provided photographs taken at the end of the tenancy showing the exterior of the windows and the house were not reasonably clean and tidy.
I have two issues with the claim for the exterior house wash: it is not the tenant’s responsibilities to clean the outside of the house; and the photographs the landlord says were taken by the previous agent at the end of the tenancy do not show the outside of the premises. Therefore, I do not have any comparison photographs. The claim for the exterior house wash is dismissed.
Tenants are responsible for cleaning the external windows provided they are accessible. The premises is a 4-bedroom, single storey house and the majority of the windows appear to be accessible. I consider 7 hours at $50 plus GST per hour for this work to be reasonable.
This claim is proved, and I award $411.76 (including GST) for this claim.

Is the tenant responsible for the damage to the premises?

Sections 40(2)(a), 41 and 49B of the RTA provide that 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.
Section 49B(3)(a) of the RTA provides that 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).
Section 49B(3)(b) of the RTA provides that 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). Section 49B(3A)(a) of the RTA provides that where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.
Section 49B(1) of the RTA provides that 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.
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.)
The landlord has claimed for a replacement door lock on the sliding door which it says was missing at the end of the tenancy. The landlord provided a photograph showing the missing door lock and an invoice for the replacement lock. I am satisfied that this damage occurred during the tenancy and is more than fair wear and tear. The tenant has not disproved that the damage was careless or intentional. This claim is proved, and I award $292.73 (including GST) for this claim.
Central Property Management Limited has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee.

Tenancy Tribunal case 4830817 — Rent arrears at 28 Blackbridge Road, Dairy Flat, RD 4, Dairy Flat 0794

At a glance

Tenancy Tribunal case 4830817 — Rent arrears at 28 Blackbridge Road, Dairy Flat, RD 4, Dairy Flat 0794

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions