What was the outcome of Tenancy Tribunal case 4837645?

The tribunal order states: Thaksara Kavinda Bandara Wijebbahu Mudiyanselage must pay Xue Qun He

How much money was awarded in case 4837645?

Cleaning: $1,339.75 awarded to landlord; Excess For 7 Claims: $3,500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; (Bathroom Basin: $541.57 awarded to landlord; (Ceiling Repainting: $4,417.15 awarded to landlord; (Corridor Light Fitting: $97.75 awarded to landlord; (Garage Cabinet: $195.50 awarded to landlord; Property Damage: $170.00 awarded to landlord; Property Damage: $9,276.02 awarded to landlord

What type of tenancy dispute was case 4837645?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4837645?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10645037-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4837645?

The tribunal order states: Thaksara Kavinda Bandara Wijebbahu Mudiyanselage must pay Xue Qun He

How much money was awarded in case 4837645?

Cleaning: $1,339.75 awarded to landlord; Excess For 7 Claims: $3,500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; (Bathroom Basin: $541.57 awarded to landlord; (Ceiling Repainting: $4,417.15 awarded to landlord; (Corridor Light Fitting: $97.75 awarded to landlord; (Garage Cabinet: $195.50 awarded to landlord; Property Damage: $170.00 awarded to landlord; Property Damage: $9,276.02 awarded to landlord

What type of tenancy dispute was case 4837645?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4837645?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10645037-Tribunal_Order.pdf.

118 Hugh Green Drive, Pinehill, Auckland 0632 Tenancy Tribunal Case 4837645 — Property damage

Claims and awards in Tenancy Tribunal application 4837645 — net $19,558.18 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
excess for 7 claims	$3,500.00	excess for 7 claims
Repairs: (ceiling repainting	$4,417.15	Repairs: (ceiling repainting
Repairs: (wall and skirting board repair and repaint	$9,276.02	Repairs: (wall and skirting board repair and repaint
Repairs: (repair heat pump vents and moving mechanisms	$170.00	Repairs: (repair heat pump vents and moving mechanisms
Repairs: (garage cabinet	$195.50	Repairs: (garage cabinet
Repairs: (corridor light fitting	$97.75	Repairs: (corridor light fitting
Repairs: (bathroom basin	$541.57	Repairs: (bathroom basin
Cleaning	$1,339.75	17. The following damage was caused during the tenancy: a.
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$19,558.18
Total payable by Tenant to Landlord	$19,558.18

Order

Thaksara Kavinda Bandara Wijebbahu Mudiyanselage must pay Xue Qun He $19,558.18 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy.
The landlord had made a claim for $137.05 for water rates arrears but withdrew this claim at the hearing as the tenant had made payment for this debt.

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. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The tenant says he did clean the house to a reasonably clean and tidy standard and that he runs a cleaning business and knows how to clean a house to the required standard.
The landlord produced evidence that showed there was ink, sauce, coffee and other substances splattered up the walls and on the ceilings that needed to be cleaned. The landlord also produced evidence that shows the dishwasher and oven were left dirty and the windows and window frames were also quite dirty.
On the balance of probabilities, I prefer the landlord’s photographic evidence to the oral evidence of the tenant as the landlord’s photographs show the house was not in a condition that the average person would agree was reasonably clean and tidy.
The tenant did not return the keys, but the tenant has already paid the landlord $1,690.00 for replacing the keys, including the digital key, that was broken.
The amounts ordered are proved.

Is the tenant 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.
The following damage was caused during the tenancy: a. The carpets in all of the 5 bedrooms, the living room and the corridors were all damaged by what looks like ink, paint and drinks that have been spilled on it. I accept the tenant’s evidence that part of the damage in one of the bedrooms on the second level may have been damaged by a leak from the bathroom adjacent to the bedroom and have factored that into the quantum of damages awarded; b. The ceilings throughout the house were stained with sauces, ink or paint and required cleaning and then repainting. The tenant accepted responsibility for this damage; c. The walls in the entrance way and the lounge had holes and some skirting boards were chipped. The tenant claimed the walls had these holes at the start of the tenancy. The entry inspection report signed by the tenant and dated on 6 May 2021 shows that the tenant agreed the house was in reasonably good condition at the start of the tenancy and no such holes were recorded as having been present by either party; d. The walls throughout the house were stained with sauces, ink or paint and required cleaning and then repainting. The tenant accepted responsibility for this damage; e. The heat pump vents and movement mechanisms were damaged from the tenant hanging heavy items off it and these mechanisms had to be replaced or the heat pump vents had to be positioned manually. The tenant denied being responsible for this damage but the landlord proved it happened during the tenancy and gave evidence he had seen clothes hung off the vents during routine inspections; f. The cabinet in the garage was broken. The tenant accepted responsibility for this damage; and g. The wall light fitting in the entrance way was damaged when the tenant moved out and had to be replaced; and h. The bathroom basin had a large hole in it as well as cracks. The tenant said the cracks just gave way one day and the damage was fair wear and tear. However, the landlord produced a photograph of the basin on 11 February 2022 that shows the basin in pristine condition and did not have any cracks. I am not satisfied the damage to the basin is fair wear and tear.
I am satisfied the damage is more than fair wear and tear because most of the damage was accepted by the tenant as having been caused by his 5- and 6- year-old children or himself. The tenant has not disproved liability for the damage.
The amounts ordered are proved.
I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. Some of the carpet was 15 years old and some was 5 years old, and the basin was 15 years old. I have made a 50% deduction from the replacement cost of the basin sought by the landlord due to the age of it.
The landlord was insured for the carpet damage only and has made 7 claims for the 7 rooms that had to be recarpeted due to the tenant’s children’s careless damage. The insurance excess is $500.00 per claim, totalling $3,500.00. The insurer is still assessing the claim, but the landlord has agreed to accept the insurance excess amount as the total amount sought would have been depreciated because of the age of most of the carpet and there would have been a deduction for the water damage to some of the carpet in one of the bedrooms. Reimbursement of filing fee
Because Xue Qun He has substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4837645 — net $19,558.18 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
excess for 7 claims	$3,500.00	excess for 7 claims
Repairs: (ceiling repainting	$4,417.15	Repairs: (ceiling repainting
Repairs: (wall and skirting board repair and repaint	$9,276.02	Repairs: (wall and skirting board repair and repaint
Repairs: (repair heat pump vents and moving mechanisms	$170.00	Repairs: (repair heat pump vents and moving mechanisms
Repairs: (garage cabinet	$195.50	Repairs: (garage cabinet
Repairs: (corridor light fitting	$97.75	Repairs: (corridor light fitting
Repairs: (bathroom basin	$541.57	Repairs: (bathroom basin
Cleaning	$1,339.75	17. The following damage was caused during the tenancy: a.
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$19,558.18
Total payable by Tenant to Landlord	$19,558.18

Order

Thaksara Kavinda Bandara Wijebbahu Mudiyanselage must pay Xue Qun He $19,558.18 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for compensation and reimbursement of the filing fee following the end of the tenancy.
The landlord had made a claim for $137.05 for water rates arrears but withdrew this claim at the hearing as the tenant had made payment for this debt.

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. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The tenant says he did clean the house to a reasonably clean and tidy standard and that he runs a cleaning business and knows how to clean a house to the required standard.
The landlord produced evidence that showed there was ink, sauce, coffee and other substances splattered up the walls and on the ceilings that needed to be cleaned. The landlord also produced evidence that shows the dishwasher and oven were left dirty and the windows and window frames were also quite dirty.
On the balance of probabilities, I prefer the landlord’s photographic evidence to the oral evidence of the tenant as the landlord’s photographs show the house was not in a condition that the average person would agree was reasonably clean and tidy.
The tenant did not return the keys, but the tenant has already paid the landlord $1,690.00 for replacing the keys, including the digital key, that was broken.
The amounts ordered are proved.

Is the tenant 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.
The following damage was caused during the tenancy: a. The carpets in all of the 5 bedrooms, the living room and the corridors were all damaged by what looks like ink, paint and drinks that have been spilled on it. I accept the tenant’s evidence that part of the damage in one of the bedrooms on the second level may have been damaged by a leak from the bathroom adjacent to the bedroom and have factored that into the quantum of damages awarded; b. The ceilings throughout the house were stained with sauces, ink or paint and required cleaning and then repainting. The tenant accepted responsibility for this damage; c. The walls in the entrance way and the lounge had holes and some skirting boards were chipped. The tenant claimed the walls had these holes at the start of the tenancy. The entry inspection report signed by the tenant and dated on 6 May 2021 shows that the tenant agreed the house was in reasonably good condition at the start of the tenancy and no such holes were recorded as having been present by either party; d. The walls throughout the house were stained with sauces, ink or paint and required cleaning and then repainting. The tenant accepted responsibility for this damage; e. The heat pump vents and movement mechanisms were damaged from the tenant hanging heavy items off it and these mechanisms had to be replaced or the heat pump vents had to be positioned manually. The tenant denied being responsible for this damage but the landlord proved it happened during the tenancy and gave evidence he had seen clothes hung off the vents during routine inspections; f. The cabinet in the garage was broken. The tenant accepted responsibility for this damage; and g. The wall light fitting in the entrance way was damaged when the tenant moved out and had to be replaced; and h. The bathroom basin had a large hole in it as well as cracks. The tenant said the cracks just gave way one day and the damage was fair wear and tear. However, the landlord produced a photograph of the basin on 11 February 2022 that shows the basin in pristine condition and did not have any cracks. I am not satisfied the damage to the basin is fair wear and tear.
I am satisfied the damage is more than fair wear and tear because most of the damage was accepted by the tenant as having been caused by his 5- and 6- year-old children or himself. The tenant has not disproved liability for the damage.
The amounts ordered are proved.
I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. Some of the carpet was 15 years old and some was 5 years old, and the basin was 15 years old. I have made a 50% deduction from the replacement cost of the basin sought by the landlord due to the age of it.
The landlord was insured for the carpet damage only and has made 7 claims for the 7 rooms that had to be recarpeted due to the tenant’s children’s careless damage. The insurance excess is $500.00 per claim, totalling $3,500.00. The insurer is still assessing the claim, but the landlord has agreed to accept the insurance excess amount as the total amount sought would have been depreciated because of the age of most of the carpet and there would have been a deduction for the water damage to some of the carpet in one of the bedrooms. Reimbursement of filing fee
Because Xue Qun He has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4837645 — Property damage at 118 Hugh Green Drive, Pinehill, Auckland 0632

At a glance

Tenancy Tribunal case 4837645 — Property damage at 118 Hugh Green Drive, Pinehill, Auckland 0632

At a glance

Award balance

Claims & awards

Order

Reasons

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

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

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

Frequently asked questions