What was the outcome of Tenancy Tribunal case 4924113?

The tribunal order states: Mitchell Macpherson, Reece Labuschagne and Jake Sturrock to pay Home365

How much money was awarded in case 4924113?

Cleaning: $230.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Property Damage: $402.50 awarded to landlord; Property Damage: $402.50 awarded to landlord; Property Damage: $138.00 awarded to landlord; Property Damage: $287.50 awarded to landlord

What type of tenancy dispute was case 4924113?

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

Where can I read the official tribunal order for case 4924113?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10904810-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4924113?

The tribunal order states: Mitchell Macpherson, Reece Labuschagne and Jake Sturrock to pay Home365

How much money was awarded in case 4924113?

Cleaning: $230.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Property Damage: $402.50 awarded to landlord; Property Damage: $402.50 awarded to landlord; Property Damage: $138.00 awarded to landlord; Property Damage: $287.50 awarded to landlord

What type of tenancy dispute was case 4924113?

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

Where can I read the official tribunal order for case 4924113?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10904810-Tenancy_Tribunal_Order.pdf.

25 Kiteroa Terrace, Rothesay Bay, Auckland 0630 Tenancy Tribunal Case 4924113 — Property damage

Claims and awards in Tenancy Tribunal application 4924113 — net $1,987.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$230.00	Cleaning
Damage to kitchen sink	$500.00	Damage to kitchen sink
Damage to deck	$402.50	Damage to deck
Damage to laundry cabinet	$402.50	Damage to laundry cabinet
Repair waste disposal unit	$138.00	Repair waste disposal unit
Damage to garden flower bed	$287.50	Damage to garden flower bed
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,987.50
Bond	$5,000.00
Total payable by Tenant to Landlord	$1,987.50

Order

Mitchell Macpherson, Reece Labuschagne and Jake Sturrock to pay Home365 Property Management Limited $1,987.50 from the bond, calculated as shown in the table below:
The Bond Centre is to pay the bond of $5,000.00 (5556473-008) immediately apportioned as follows: Home365 Property Management Limited: $1,987.50 Mitchell Macpherson, Reece Labuschagne and Jake Sturrock: $3,012.50
The landlord’s claim for damage to the aluminium door rail is dismissed.

Reasons

The landlord attended the hearing. Two of the tenants, Mr Macpherson and Mr Labuschagne, attended the hearing. They confirmed at the hearing that they had authority to represent the third tenant, Mr Sturrock.
This is a cross application. The tenant initially applied for refund of the bond. The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

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

Section 40(1)(e)(ii)-(v) of the Residential Tenancies Act 1986 (RTA) provides that 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.
The landlord has provided photographs showing that the tenant did not leave the premises reasonably clean and tidy. The landlord has also provided an invoice for cleaning for $343.85 (including GST).
At $50 per hour plus GST this would equate to almost 7 hours of cleaning. From the photographs provided, I consider this to be excessive. I award $230.00 (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) if 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.
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. 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.
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 tenancy agreement states that the premises are insured with an excess of $550 per claim.
The landlord has claimed that the following damage was caused during the tenancy: a) damage to the kitchen sink; b) damage to the deck; c) damage to the laundry cabinet; d) repair of the waste disposal unit; and e) damage to the aluminium door rail. a) Damage to the kitchen sink:
The tenancy started on 06 May 2023 and terminated on 05 May 2024. The tenants were the first occupants of the property.
The landlord says the tenant damaged the kitchen sink during the tenancy and is claiming the cost of $1,725.00 (including GST) to replace the kitchen sink. The landlord said of the sink: The sink plays a very important role in the kitchen, not only for the sink usage, but also to beautify the kitchen to bring it to the good quality standards.
The tenant has provided the pre-tenancy inspection report showing that the property was in a good condition at the start of the tenancy. The landlord has provided photographs taking at the end of the tenancy showing the kitchen sink had several scratch marks. The tenant has provided further photographs from the start of the tenancy which show the sink had some minor scratch marks at the beginning of the tenancy.
The landlord did not make an insurance claim. I accept damage of this nature is unlikely to be covered by insurance as it is unlikely to be attributable to one event.
The tenant’s position is that the damage to the sink is fair wear and tear. It appears that black sinks are more prone to scratch damage and to showing damages compared to other sinks. However, it also appears that damage can be avoided by users taking additional care. 1 1 https://www.lettalondon.com/blogs/news/5-things-you-need-to-know-before-buying-a-black-kitchen- sink-in-2023, retrieved on 02 October 2024.
I consider that the damage was more than likely caused by the tenants failing to take sufficient care when placing items in the sink and/or when cleaning the sink. I find the majority of the damage to the sink to have been caused during the tenancy and to be more than fair wear and tear. I also find the damage to be intentional in the sense that damage occurred over time and the tenants knew or ought to have known that continuing this situation would result in damage to the sink. (See paragraph 9 above.)
Having said that, I decline to award the full replacement cost of the sink. Where goods are damaged, the correct measure will, prima facie, be the cost of repair or replacement. However, this is subject to a reasonableness test. In some cases it will simply not be reasonable to award full replacement costs. In G W Atkins Ltd v Scott (1980) 7 Const LJ 215, a building owner complained of some defective tiling. The claim was for the cost of retiling the whole roof. The country court judge found that the tiling was defective, but that the defects were mostly cosmetic and of a minor character. He refused to give the plaintiff the cost of reinstatement and instead awarded a sum of around 20% of the full replacement cost for poor workmanship. The decision was upheld by the Court of Appeal where Sir David Cairns observed: ..in some cases it would be grossly unreasonable, or capricious, or perverse, to suggest reinstatement and that in such a case some other basis of assessment must be found. I confess that I can see no reason in principle, nor any support in the authorities, for the proposition that the test is other than lack of reasonableness simpliciter... 2
I consider this matter to be similar. The damage to the kitchen sink is cosmetic and of a minor character. I do not consider it is reasonable to award the full replacement costs. In these circumstances, I consider it is appropriate to depart from the cost of repairs as the appropriate measure and instead award a sum of $500 (including GST) for “loss of amenity”. b) Damage to the deck:
The landlord has claimed $402.50 (including GST) to repair a corner of the deck it says was damaged during the tenancy. To support this claim, the landlord has provided an invoice for the work and photographs showing the damage. The pre- tenancy photographs show that the damage was not there at the start of the tenancy. 2 GW Atkins Ltd v Scott (1980) 46 ConLR 14, CA, p. 23.
The tenants say they do not know how the damage occurred and question if it was fair wear and tear.
I am satisfied that the damage occurred during the tenancy and is more than fair wear and tear. The tenants have not disproved that the damage was careless or intentional.
This claim is proved, and I award $402.50 (including GST) for this claim. c) Damage to the laundry cabinet:
The landlord has provided an invoice for $402.50 (including GST) for damage to the laundry cabinet. The landlord has also provided photographs from the end of the tenancy showing the damage to the cabinet. The pre-tenancy photographs show the laundry cabinet to be in good condition.
The tenants say they do not know how the damage occurred. They there was a washing machine in the cabinet and it may have been caused by moisture and that the damage was fair wear and tear.
I find the damage occurred during the tenancy and is more than fiar wear and tear. The tenants have not disproved that the damage was careless or intentional.
This claim is proved, and I award $402.50 (including GST) for this claim. d) Damage to the waste disposal unit:
Following the hearing, the landlord provided an invoice dated 15 May 2024 for repairing the waste disposal unit. This invoice states that there was a shell stuck in the machine.
The tenants say they do not accept the damage because it has been 4 months since the tenancy ended and the damage could have occurred during that time. I do not accept this argument; the invoice is dated 15 May 2024, some 10 days after the tenancy ended.
I find that the damage to the waste disposal unit occurred during the tenancy and that it was more than fair wear and tear. The tenants have not disproved that it was either careless or intentional. I award $138.00 (including GST) for this claim. e) Damage to the garden bed:
The landlord has provided a photograph from an inspection in February 2024 showing the garden bed in good condition. A photograph taken at the end of the tenancy shows damage consistent with a vehicle having driven over the flower bed. The landlord has also provided an invoice showing that the cost to repair the flower bed was $287.50 (including GST).
I am satisfied that the damage occurred during the tenancy and is more than fair wear and tear. The tenants have not disproved that the damage was careless or intentional.
That said, the damage was not extensive. I consider the repair cost of $287.00 (including GST) to be excessive and award $172.50 (including GST) for this claim. f) Damage to the aluminium door rail:
The landlord has claimed $345.00 (incljding GST) to fix the aluminium door rail. The landlord asserts this damage was caused during the tenancy, probably by the tenants moving their belongings in or out of the premises. The tenants deny damaging the door rail.
The landlord has provided a pre-inspection report with several photographs and an inspection report conducted during the tenancy in February 2024. The reports do not appear to have been signed by the tenants.
While there are several photographs in the pre-tenancy report, there are no photographs showing the state of the door rail. The burden to prove that the damage occurred during the tenancy is on the landlord. I am not satisfied that this damage occurred during the tenancy and this claim is dismissed.
Home365 Property Management Limited has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee.
Mitchell Macpherson, Reece Labuschagne, Jake Sturrock have not been wholly or substantially successful with their claim. For this reason, their application for suppression is declined.

Claims and awards in Tenancy Tribunal application 4924113 — net $1,987.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Cleaning	$230.00	Cleaning
Damage to kitchen sink	$500.00	Damage to kitchen sink
Damage to deck	$402.50	Damage to deck
Damage to laundry cabinet	$402.50	Damage to laundry cabinet
Repair waste disposal unit	$138.00	Repair waste disposal unit
Damage to garden flower bed	$287.50	Damage to garden flower bed
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,987.50
Bond	$5,000.00
Total payable by Tenant to Landlord	$1,987.50

Order

Mitchell Macpherson, Reece Labuschagne and Jake Sturrock to pay Home365 Property Management Limited $1,987.50 from the bond, calculated as shown in the table below:
The Bond Centre is to pay the bond of $5,000.00 (5556473-008) immediately apportioned as follows: Home365 Property Management Limited: $1,987.50 Mitchell Macpherson, Reece Labuschagne and Jake Sturrock: $3,012.50
The landlord’s claim for damage to the aluminium door rail is dismissed.

Reasons

The landlord attended the hearing. Two of the tenants, Mr Macpherson and Mr Labuschagne, attended the hearing. They confirmed at the hearing that they had authority to represent the third tenant, Mr Sturrock.
This is a cross application. The tenant initially applied for refund of the bond. The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

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

Section 40(1)(e)(ii)-(v) of the Residential Tenancies Act 1986 (RTA) provides that 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.
The landlord has provided photographs showing that the tenant did not leave the premises reasonably clean and tidy. The landlord has also provided an invoice for cleaning for $343.85 (including GST).
At $50 per hour plus GST this would equate to almost 7 hours of cleaning. From the photographs provided, I consider this to be excessive. I award $230.00 (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) if 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.
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. 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.
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 tenancy agreement states that the premises are insured with an excess of $550 per claim.
The landlord has claimed that the following damage was caused during the tenancy: a) damage to the kitchen sink; b) damage to the deck; c) damage to the laundry cabinet; d) repair of the waste disposal unit; and e) damage to the aluminium door rail. a) Damage to the kitchen sink:
The tenancy started on 06 May 2023 and terminated on 05 May 2024. The tenants were the first occupants of the property.
The landlord says the tenant damaged the kitchen sink during the tenancy and is claiming the cost of $1,725.00 (including GST) to replace the kitchen sink. The landlord said of the sink: The sink plays a very important role in the kitchen, not only for the sink usage, but also to beautify the kitchen to bring it to the good quality standards.
The tenant has provided the pre-tenancy inspection report showing that the property was in a good condition at the start of the tenancy. The landlord has provided photographs taking at the end of the tenancy showing the kitchen sink had several scratch marks. The tenant has provided further photographs from the start of the tenancy which show the sink had some minor scratch marks at the beginning of the tenancy.
The landlord did not make an insurance claim. I accept damage of this nature is unlikely to be covered by insurance as it is unlikely to be attributable to one event.
The tenant’s position is that the damage to the sink is fair wear and tear. It appears that black sinks are more prone to scratch damage and to showing damages compared to other sinks. However, it also appears that damage can be avoided by users taking additional care. 1 1 https://www.lettalondon.com/blogs/news/5-things-you-need-to-know-before-buying-a-black-kitchen- sink-in-2023, retrieved on 02 October 2024.
I consider that the damage was more than likely caused by the tenants failing to take sufficient care when placing items in the sink and/or when cleaning the sink. I find the majority of the damage to the sink to have been caused during the tenancy and to be more than fair wear and tear. I also find the damage to be intentional in the sense that damage occurred over time and the tenants knew or ought to have known that continuing this situation would result in damage to the sink. (See paragraph 9 above.)
Having said that, I decline to award the full replacement cost of the sink. Where goods are damaged, the correct measure will, prima facie, be the cost of repair or replacement. However, this is subject to a reasonableness test. In some cases it will simply not be reasonable to award full replacement costs. In G W Atkins Ltd v Scott (1980) 7 Const LJ 215, a building owner complained of some defective tiling. The claim was for the cost of retiling the whole roof. The country court judge found that the tiling was defective, but that the defects were mostly cosmetic and of a minor character. He refused to give the plaintiff the cost of reinstatement and instead awarded a sum of around 20% of the full replacement cost for poor workmanship. The decision was upheld by the Court of Appeal where Sir David Cairns observed: ..in some cases it would be grossly unreasonable, or capricious, or perverse, to suggest reinstatement and that in such a case some other basis of assessment must be found. I confess that I can see no reason in principle, nor any support in the authorities, for the proposition that the test is other than lack of reasonableness simpliciter... 2
I consider this matter to be similar. The damage to the kitchen sink is cosmetic and of a minor character. I do not consider it is reasonable to award the full replacement costs. In these circumstances, I consider it is appropriate to depart from the cost of repairs as the appropriate measure and instead award a sum of $500 (including GST) for “loss of amenity”. b) Damage to the deck:
The landlord has claimed $402.50 (including GST) to repair a corner of the deck it says was damaged during the tenancy. To support this claim, the landlord has provided an invoice for the work and photographs showing the damage. The pre- tenancy photographs show that the damage was not there at the start of the tenancy. 2 GW Atkins Ltd v Scott (1980) 46 ConLR 14, CA, p. 23.
The tenants say they do not know how the damage occurred and question if it was fair wear and tear.
I am satisfied that the damage occurred during the tenancy and is more than fair wear and tear. The tenants have not disproved that the damage was careless or intentional.
This claim is proved, and I award $402.50 (including GST) for this claim. c) Damage to the laundry cabinet:
The landlord has provided an invoice for $402.50 (including GST) for damage to the laundry cabinet. The landlord has also provided photographs from the end of the tenancy showing the damage to the cabinet. The pre-tenancy photographs show the laundry cabinet to be in good condition.
The tenants say they do not know how the damage occurred. They there was a washing machine in the cabinet and it may have been caused by moisture and that the damage was fair wear and tear.
I find the damage occurred during the tenancy and is more than fiar wear and tear. The tenants have not disproved that the damage was careless or intentional.
This claim is proved, and I award $402.50 (including GST) for this claim. d) Damage to the waste disposal unit:
Following the hearing, the landlord provided an invoice dated 15 May 2024 for repairing the waste disposal unit. This invoice states that there was a shell stuck in the machine.
The tenants say they do not accept the damage because it has been 4 months since the tenancy ended and the damage could have occurred during that time. I do not accept this argument; the invoice is dated 15 May 2024, some 10 days after the tenancy ended.
I find that the damage to the waste disposal unit occurred during the tenancy and that it was more than fair wear and tear. The tenants have not disproved that it was either careless or intentional. I award $138.00 (including GST) for this claim. e) Damage to the garden bed:
The landlord has provided a photograph from an inspection in February 2024 showing the garden bed in good condition. A photograph taken at the end of the tenancy shows damage consistent with a vehicle having driven over the flower bed. The landlord has also provided an invoice showing that the cost to repair the flower bed was $287.50 (including GST).
I am satisfied that the damage occurred during the tenancy and is more than fair wear and tear. The tenants have not disproved that the damage was careless or intentional.
That said, the damage was not extensive. I consider the repair cost of $287.00 (including GST) to be excessive and award $172.50 (including GST) for this claim. f) Damage to the aluminium door rail:
The landlord has claimed $345.00 (incljding GST) to fix the aluminium door rail. The landlord asserts this damage was caused during the tenancy, probably by the tenants moving their belongings in or out of the premises. The tenants deny damaging the door rail.
The landlord has provided a pre-inspection report with several photographs and an inspection report conducted during the tenancy in February 2024. The reports do not appear to have been signed by the tenants.
While there are several photographs in the pre-tenancy report, there are no photographs showing the state of the door rail. The burden to prove that the damage occurred during the tenancy is on the landlord. I am not satisfied that this damage occurred during the tenancy and this claim is dismissed.
Home365 Property Management Limited has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee.
Mitchell Macpherson, Reece Labuschagne, Jake Sturrock have not been wholly or substantially successful with their claim. For this reason, their application for suppression is declined.

Tenancy Tribunal case 4924113 — Property damage at 25 Kiteroa Terrace, Rothesay Bay, Auckland 0630

At a glance

Tenancy Tribunal case 4924113 — Property damage at 25 Kiteroa Terrace, Rothesay Bay, Auckland 0630

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

Property management

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

Property management

Frequently asked questions