What was the outcome of Tenancy Tribunal case 4905895?

The tribunal order states: Murray Clarke and Sawae Clarke to pay Pentagon Management Limited As

How much money was awarded in case 4905895?

Cleaning: $200.00 awarded to landlord; Property Damage: $754.00 awarded to landlord

What type of tenancy dispute was case 4905895?

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

Where can I read the official tribunal order for case 4905895?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10637846-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4905895?

The tribunal order states: Murray Clarke and Sawae Clarke to pay Pentagon Management Limited As

How much money was awarded in case 4905895?

Cleaning: $200.00 awarded to landlord; Property Damage: $754.00 awarded to landlord

What type of tenancy dispute was case 4905895?

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

Where can I read the official tribunal order for case 4905895?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10637846-Tenancy_Tribunal_Order.pdf.

3A Wesley Street, Devonport, Auckland 0624 Tenancy Tribunal Case 4905895 — Property damage

Claims and awards in Tenancy Tribunal application 4905895 — net $954.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs	$754.00	Repairs
Cleaning	$200.00	Cleaning
Net award	$954.00
Bond	$6,000.00
Total payable by Tenant to Landlord	$954.00

Order

Murray Clarke and Sawae Clarke to pay Pentagon Management Limited As Agent For Mark Van Strieland As The Trustee For Elaine Neighbour Trust $954.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $6,000.00 (6378131-003) immediately apportioned as follows: Pentagon Management Limited As Agent For Mark Van Strieland As The Trustee For Elaine Neighbour Trust: $954.00 Murray Clarke and Sawae Clarke: $5,046.00
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlord and tenants following the end of the Tenancy.
Both parties appeared at the hearing. Mr Clarke appeared in person, as did Ms Gilchrist for the property management company.

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 unlikely, 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.

LANDLORDS CLAIMS

The landlord originally filed a range of claims with the Tribunal, but by the day of the hearing there were only two remaining. That is a claim for repairs as set out in the invoice from Nicholas Philp, and a claim for cleaning costs. Repairs
The landlord has claimed $1,760.00 for repair costs to the premises with reference to the invoice from Nicholas Philp. The invoice sets out seven specific areas of damage (I will combine the bedroom 3 claims below), but the cost for each area of damage has not been specified, the invoiced amount is for one global sum. The landlord has provided some photographs to support the claim.
The landlord states that Mr Philp would normally undertake the repairs to the premises over the years. Ms Gilcrist states that in her experience the owner always ensures that the premises are immaculate and any blemishes addressed before the next tenancy starts so that the premises are like new when the tenancy commences. Garage door portal
The invoice from Mr Philp records in relation to this damage “car roof rack damage in multiple locations requiring timber repairs & paint.”
The tenant disputes that he has damaged the top of the garage door, because they did not park anything in the garage that would likely have hit the top of the door. Analysis
I record that I found Mr Clarke to be a compelling witness. When we went through the claims, Mr Clarke readily accepted responsibility for various items of damage. When Mr Clarke tells me that the damage was not caused by him or someone on the premises with his permission, I tend to accept that evidence.
I raised with the landlord that the onus was first to prove that damage occurred during the tenancy. The landlord confirmed that she could not prove this, all she has is what the owner is saying to her. In relation to this claim, I must conclude that the landlord has not established that this damage occurred during the tenancy, so this claim is dismissed as it has not been established. Front door jamb
The landlord states that the door jamb was damaged from the security bolt not being fully retracted when the door was closed.
In response Mr Clarke states that it is possible that one of the children may have closed the door with the lock extended, but he is not sure what has caused this damage specifically. Analysis
I take it from this claim, that there was a security slide bolt that was not properly retracted when the door was closed, causing damage to the wood and paint.
On balance, I accept that this damage occurred during the tenancy, and would be beyond fair wear and tear. Opening or closing a door without properly retracting the locks would be careless. I consider the tenant should be liable for this repair cost. Front entry pelmet
The landlord states that a pelmet was missing at the end of the tenancy and needed to be rebuilt.
In response, the tenant said that early on in the tenancy the pelmet fell off, it was not properly fastened, so it was left in the laundry closet where it was when possession was returned to the landlord. Analysis
I accept the tenants evidence that the pelmet fell off during the tenancy. I am not sure why that would be the case, but I accept that it did. That would therefore mean it became a maintenance issue for the landlord to repair.
I also accept that the tenant left this in the wardrobe when he left the tenancy. At the end of the tenancy, the law requires that the tenant return all chattels, and I accept that he did do that.
Given I cannot see a breach arising on the part of the landlord here, I find this claim has not been established. Stairwell damage
The landlord claims for a repair to the stairway wall.
The tenant accepts that the wall was damaged, and does not dispute this claim. Bedroom 2 – Architrave damage
The landlord has claimed for damage to the architrave which required repair, but otherwise she is not sure what this damage relates to.
The tenant said he does know what this damage relates to. Analysis
Again the onus is on the landlord to establish the claim, meaning that firstly the landlord must prove the damage occurred during the tenancy, and was beyond fair wear and tear. The landlord has not established that, so this claim is dismissed. Bedroom 3 – wall repairs
The landlord claims for door repairs to the walls in bedroom three, including a repaint of the room from scuff marks. The invoice records a need for two coats of plaster and repainting of the repair.
The tenant does not dispute this claim, but considers that the landlord has been excessive with the work that they have undertaken after the tenancy ended. Scuff marks must be accepted as fair wear and tear in a rental property. Analysis
The tenant accepts that he will be liable for the repair to the wall needing plaster and paint, so that is ordered.
But the tenant disputes that he should be liable for scuff marks on walls. I agree with the tenant that in a rental, some scuff marks are almost inevitable. Marks on walls occur from ordinary life in a dwelling. This is fair wear and tear, and the landlord is responsible for that, that is the bargain struck with the tenant for the tenant’s rent payments.
Because I find that the landlord has not established that the scuff marks would be anything other than fair wear and tear, this claim must be dismissed (but the claim for the wall repairs is accepted). Conclusion on repair claims
As noted above, the amount of invoiced from Mr Philp is the global amount of $1,760.00. Unfortunately the seven areas of work are not specified in terms of time or cost. But as I have set out above, I consider that the tenant is liable for three of the seven repair claims.
In the absence of more specific costs, I consider a fair approach is to order that the tenants pay 3/7 th of the invoiced amount, which is $754.00. Cleaning
The landlord seeks $200.00 for cleaning. The claim relates to work undertaken by the landlord including to blinds, under the stove and bathroom.
The tenant does not dispute this claim.

TENANTS CLAIMS

The tenants claims that the landlord is a predatory landlord, in that he has made some $7,000 claims against him, which he considers to be unjustified as demonstrated by them being withdrawn. Mr Clarke states that he undertook research to find that they were not responsible for much of the damage. Further there has been a previous flood at the tenancy which has caused damage that the landlord has claimed against him
It is clear to me that Mr Clarke is very aggrieved at the claims made against him, and he has taken considerable time to prepare written submissions on the points in defence. However as I explained at the hearing today, because the landlord has not advanced the other claims (they were withdrawn prior to the hearing), then the Tribunal cannot go on to decide if there was any basis for them. I note the High Court decision of Simpson v Whakatane District Court (No 2) [2006] NZAR 247, in which Asher J confirmed: [22] It is a well recognised common law principle that it is contrary to public policy for the Courts to entertain proceedings where there is no actual outstanding issue in existence between the parties. The Courts are not, in general terms, available to provide a free or subsidised opinion service to the public. Court time is a precious commodity, and cannot sensibly be spent on deciding matters that only have academic interest, or which prove a point of opinion rather than resolve a dispute.
More recently the High Court in Body Corporate 375933 v Tenancy Tribunal and Wellington Waterfront Luxury Apartment Limited [2017] NZHC 1619, confirmed that this same principle applies to proceedings in the tenancy Tribunal.
As I said I would do, I have recorded the tenant’s concerns above for the record, but I cannot take these matters any further.

Claims and awards in Tenancy Tribunal application 4905895 — net $954.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs	$754.00	Repairs
Cleaning	$200.00	Cleaning
Net award	$954.00
Bond	$6,000.00
Total payable by Tenant to Landlord	$954.00

Order

Murray Clarke and Sawae Clarke to pay Pentagon Management Limited As Agent For Mark Van Strieland As The Trustee For Elaine Neighbour Trust $954.00 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $6,000.00 (6378131-003) immediately apportioned as follows: Pentagon Management Limited As Agent For Mark Van Strieland As The Trustee For Elaine Neighbour Trust: $954.00 Murray Clarke and Sawae Clarke: $5,046.00
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlord and tenants following the end of the Tenancy.
Both parties appeared at the hearing. Mr Clarke appeared in person, as did Ms Gilchrist for the property management company.

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 unlikely, 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.

LANDLORDS CLAIMS

The landlord originally filed a range of claims with the Tribunal, but by the day of the hearing there were only two remaining. That is a claim for repairs as set out in the invoice from Nicholas Philp, and a claim for cleaning costs. Repairs
The landlord has claimed $1,760.00 for repair costs to the premises with reference to the invoice from Nicholas Philp. The invoice sets out seven specific areas of damage (I will combine the bedroom 3 claims below), but the cost for each area of damage has not been specified, the invoiced amount is for one global sum. The landlord has provided some photographs to support the claim.
The landlord states that Mr Philp would normally undertake the repairs to the premises over the years. Ms Gilcrist states that in her experience the owner always ensures that the premises are immaculate and any blemishes addressed before the next tenancy starts so that the premises are like new when the tenancy commences. Garage door portal
The invoice from Mr Philp records in relation to this damage “car roof rack damage in multiple locations requiring timber repairs & paint.”
The tenant disputes that he has damaged the top of the garage door, because they did not park anything in the garage that would likely have hit the top of the door. Analysis
I record that I found Mr Clarke to be a compelling witness. When we went through the claims, Mr Clarke readily accepted responsibility for various items of damage. When Mr Clarke tells me that the damage was not caused by him or someone on the premises with his permission, I tend to accept that evidence.
I raised with the landlord that the onus was first to prove that damage occurred during the tenancy. The landlord confirmed that she could not prove this, all she has is what the owner is saying to her. In relation to this claim, I must conclude that the landlord has not established that this damage occurred during the tenancy, so this claim is dismissed as it has not been established. Front door jamb
The landlord states that the door jamb was damaged from the security bolt not being fully retracted when the door was closed.
In response Mr Clarke states that it is possible that one of the children may have closed the door with the lock extended, but he is not sure what has caused this damage specifically. Analysis
I take it from this claim, that there was a security slide bolt that was not properly retracted when the door was closed, causing damage to the wood and paint.
On balance, I accept that this damage occurred during the tenancy, and would be beyond fair wear and tear. Opening or closing a door without properly retracting the locks would be careless. I consider the tenant should be liable for this repair cost. Front entry pelmet
The landlord states that a pelmet was missing at the end of the tenancy and needed to be rebuilt.
In response, the tenant said that early on in the tenancy the pelmet fell off, it was not properly fastened, so it was left in the laundry closet where it was when possession was returned to the landlord. Analysis
I accept the tenants evidence that the pelmet fell off during the tenancy. I am not sure why that would be the case, but I accept that it did. That would therefore mean it became a maintenance issue for the landlord to repair.
I also accept that the tenant left this in the wardrobe when he left the tenancy. At the end of the tenancy, the law requires that the tenant return all chattels, and I accept that he did do that.
Given I cannot see a breach arising on the part of the landlord here, I find this claim has not been established. Stairwell damage
The landlord claims for a repair to the stairway wall.
The tenant accepts that the wall was damaged, and does not dispute this claim. Bedroom 2 – Architrave damage
The landlord has claimed for damage to the architrave which required repair, but otherwise she is not sure what this damage relates to.
The tenant said he does know what this damage relates to. Analysis
Again the onus is on the landlord to establish the claim, meaning that firstly the landlord must prove the damage occurred during the tenancy, and was beyond fair wear and tear. The landlord has not established that, so this claim is dismissed. Bedroom 3 – wall repairs
The landlord claims for door repairs to the walls in bedroom three, including a repaint of the room from scuff marks. The invoice records a need for two coats of plaster and repainting of the repair.
The tenant does not dispute this claim, but considers that the landlord has been excessive with the work that they have undertaken after the tenancy ended. Scuff marks must be accepted as fair wear and tear in a rental property. Analysis
The tenant accepts that he will be liable for the repair to the wall needing plaster and paint, so that is ordered.
But the tenant disputes that he should be liable for scuff marks on walls. I agree with the tenant that in a rental, some scuff marks are almost inevitable. Marks on walls occur from ordinary life in a dwelling. This is fair wear and tear, and the landlord is responsible for that, that is the bargain struck with the tenant for the tenant’s rent payments.
Because I find that the landlord has not established that the scuff marks would be anything other than fair wear and tear, this claim must be dismissed (but the claim for the wall repairs is accepted). Conclusion on repair claims
As noted above, the amount of invoiced from Mr Philp is the global amount of $1,760.00. Unfortunately the seven areas of work are not specified in terms of time or cost. But as I have set out above, I consider that the tenant is liable for three of the seven repair claims.
In the absence of more specific costs, I consider a fair approach is to order that the tenants pay 3/7 th of the invoiced amount, which is $754.00. Cleaning
The landlord seeks $200.00 for cleaning. The claim relates to work undertaken by the landlord including to blinds, under the stove and bathroom.
The tenant does not dispute this claim.

TENANTS CLAIMS

The tenants claims that the landlord is a predatory landlord, in that he has made some $7,000 claims against him, which he considers to be unjustified as demonstrated by them being withdrawn. Mr Clarke states that he undertook research to find that they were not responsible for much of the damage. Further there has been a previous flood at the tenancy which has caused damage that the landlord has claimed against him
It is clear to me that Mr Clarke is very aggrieved at the claims made against him, and he has taken considerable time to prepare written submissions on the points in defence. However as I explained at the hearing today, because the landlord has not advanced the other claims (they were withdrawn prior to the hearing), then the Tribunal cannot go on to decide if there was any basis for them. I note the High Court decision of Simpson v Whakatane District Court (No 2) [2006] NZAR 247, in which Asher J confirmed: [22] It is a well recognised common law principle that it is contrary to public policy for the Courts to entertain proceedings where there is no actual outstanding issue in existence between the parties. The Courts are not, in general terms, available to provide a free or subsidised opinion service to the public. Court time is a precious commodity, and cannot sensibly be spent on deciding matters that only have academic interest, or which prove a point of opinion rather than resolve a dispute.
More recently the High Court in Body Corporate 375933 v Tenancy Tribunal and Wellington Waterfront Luxury Apartment Limited [2017] NZHC 1619, confirmed that this same principle applies to proceedings in the tenancy Tribunal.
As I said I would do, I have recorded the tenant’s concerns above for the record, but I cannot take these matters any further.

Tenancy Tribunal case 4905895 — Property damage at 3A Wesley Street, Devonport, Auckland 0624

At a glance

Tenancy Tribunal case 4905895 — Property damage at 3A Wesley Street, Devonport, Auckland 0624

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions