What was the outcome of Tenancy Tribunal case 4940658?

The tribunal order states: Robin Smith and YANG SOON CHO to pay Said Saad and Sawsan Rizkallah

How much money was awarded in case 4940658?

Rent Arrears: $228.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Water Rates: $37.81 awarded to landlord

What type of tenancy dispute was case 4940658?

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

Where can I read the official tribunal order for case 4940658?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11056600-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4940658?

The tribunal order states: Robin Smith and YANG SOON CHO to pay Said Saad and Sawsan Rizkallah

How much money was awarded in case 4940658?

Rent Arrears: $228.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Water Rates: $37.81 awarded to landlord

What type of tenancy dispute was case 4940658?

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

Where can I read the official tribunal order for case 4940658?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11056600-Tenancy_Tribunal_Order.pdf.

93 Sylvan Avenue, Northcote, Auckland 0627 Tenancy Tribunal Case 4940658 — Property damage

Claims and awards in Tenancy Tribunal application 4940658 — net $765.81 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$228.00	Rent arrears
Water rates	$37.81	Water rates
Replace furnishings: Carpet replacement	$500.00	Replace furnishings: Carpet replacement
Net award	$765.81
Bond	$3,200.00
Total payable by Tenant to Landlord	$765.81

Claims and awards in Tenancy Tribunal application 4940658 — net $765.81 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$228.00	Rent arrears
Water rates	$37.81	Water rates
Replace furnishings: Carpet replacement	$500.00	Replace furnishings: Carpet replacement
Net award	$765.81
Bond	$3,200.00
Total payable by Tenant to Landlord	$765.81

Order

Robin Smith and YANG SOON CHO to pay Said Saad and Sawsan Rizkallah $765.81 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,200.00 (5082085-004) immediately apportioned as follows: Said Saad and Sawsan Rizkallah: $765.81 Robin Smith and YANG SOON CHO: $2,434.19

Reasons

The landlords attended the hearing. The tenants did not attend but were instead assisted by a personal representative.
The landlords have applied for rent and water arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The landlords purchased the property in early April 2022. The landlords confirmed during the hearing that no entry photographs were taken at the start of the tenancy. They stated that they only had photographs taken by the real estate agent when they purchased the property. These were not provided with the landlord’s application or during the hearing.
Before I consider the specific claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. In this case, as it is a landlord application, that means that it is for the landlord to establish their respective claims on “the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The landlord submitted substantial documentation with their application. There was also an oral hearing. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.
The tenants filed an application with the Tribunal on 8 July 2024 seeking the return of their bond.
The landlords filed a cross application on 15 July 2024 with the following claims: a. Rent arrears b. Outstanding water invoice c. Outdoor table damage d. Compensation for damaged and missing curtains e. Carpet replacement.
During the hearing the landlords advised that they were adding the following claims pursuant to an email to Tenancy Services dated 24 July 2024: a. Damage to French bifold doors b. Cleaning c. Cleaning of outside deck d. Organic and inorganic rubbish collection e. Power board door damage f. Lawnmowing g. Compensation for replacement keys h. Missing sink plugs i. Compensation for loss of rent j. Deck repair k. Compensation for breach of tenant responsibilities l. Compensation for damage to kitchen waste disposal device m. Damage to bathroom extractor fan n. Outdoor sensor light bulb and lounge light bulb.
It is incumbent on an applicant to bring claims to the Tribunal promptly. Not to wait and then package all complaints up with a shopping list of details after the application has been lodged.
I am not prepared to conduct a line-by-line analysis of damages which have been added after the filing of the original application. This is my view is grossly unfair on the tenants. I found the state of the landlords’ evidence frankly hard to follow at times. There was a voluminous amount of it, and little attempt on the part of the landlord to properly organise it. It was not chronologically sequenced.
As discussed with the landlord during the hearing I am only prepared to deal with claims recorded in the original application dated 15 July 2024. Adding 15 new claims after the application has been lodged is not only unfair on the tenant but also immensely time consuming when claims are not properly organised.
Accordingly, the landlord will need to file a new application in respect of the further claims listed in their email dated 24 July 2024. The landlord will need to ensure that supporting evidence is filed at the same time as the application.

How much is owed for rent and water rates?

The tenancy ended on 21 April 2024. The landlords provided rent records and a water rates invoice which prove the amount owing at the end of the tenancy. Having sighted this evidence I am satisfied that the tenants are responsible for this debt.
The claims for outstanding rent and water debts are proven.

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 landlord claims the following items were damaged by the tenants during the tenancy. Outdoor table damage:
The landlords say that the tenants have damaged an outdoor table. They say that the table was there with the previous owner. The landlords say that, according to the previous owner, the table was approximately two years old. The landlords provided a photograph of the damaged table. There was no photographic evidence provided which confirms the condition of the table at the start of the tenancy.
The tenants do not accept this claim.
The landlord has now purchased a new outdoor table for $349.00. The landlord was unable to produce a receipt for this purchase. They have only provided a screenshot of a Mitre 10 picture showing the table and the cost taken from the Mitre 10 website.
I am far from satisfied that the tenants are responsible for this damage. The photograph clearly shows rust around the joint where the table leg has broken off. These tables, while sitting outside day after day are exposed to all weather elements and typically have a reasonably short lifespan. There is no evidence before me that suggests the tenants are responsible for this damage. In my view the ‘damage’ is nothing more than fair, wear and tear. The landlord must also prove a loss from a breach on the part of the tenants. They have not done so.
The claim in respect of the outdoor table is dismissed. Compensation for missing and damaged curtains:
The landlord says that the curtains in the second bedroom were missing at the end of the tenancy. They say the lounge curtains were also damaged.
The landlords claim $809.97 for curtain replacement. They say the curtains were there when they purchased the property. The landlords provided what they say is a purchase receipt from Briscoes dated 23 April 2024, although on closer inspection the receipt has the word ‘suspended’ recorded on it which may indicate that the transaction did not go through. There was no evidence confirming that actual payment was made (for example, an EFTPOS receipt).
The landlords also provided a handwritten ‘post tenancy inspection’ document dated 21 April 2024 signed by ‘Brendan Smith – Legal representative’. The landlords suggest that this is binding on the tenants as their acceptance of liability for all claims. I do not agree. Brendan Smith is not recorded on the Tenancy Agreement and in my view has no standing to accept responsibility on behalf of the tenants for claims filed against them.
The tenants’ representative responded by saying that he took some photos at the end of the tenancy but was unable to give evidence on this point.
As noted above it is incumbent on an applicant to provide proper evidence in support of their respective claims. The landlords have not provided any entry photographs taken at the start of the tenancy. The tenant provided a photograph of what appears to be curtains stacked in the corner of a bedroom. In the absence of photographic evidence taken at the start of the tenancy confirming the placement and condition of any curtains I am not satisfied that the landlord has proved their claim. Again, the onus sits with the applicant (the landlords here) to prove their claim. They must prove a loss from a breach on the part of the tenants. The claim has not been established.
The claim in respect of compensation for curtain replacement is therefore dismissed. Carpet replacement:
The landlord says that the carpet was damaged by the tenants’ dogs. The landlords do not know how old the carpet is. The landlord says that all carpet had to be replaced.
The landlord purchased new carpet from Carpet Go. An invoice dated 14 May 2024 for $5175.00 was provided in support of this.
The tenants say that the carpet was professionally cleaned which had been arranged by the removal company. The tenant’s representative says that the carpet had a musty smell after being professionally cleaned.
The landlord says that there were 10 dogs kept at the property. The landlord also referred me to an email from the Council regarding the dogs. The email was in response to a complaint about barking dogs. The email also noted that 5 small dogs were kept on the property. The Tenancy Agreement allowed the tenants to keep three dogs on the property.
Claims such as these are always difficult to assess in the absence of proper and reliable evidence. The landlord does not know how old the carpet is. There are no photographs taken at the start of the tenancy which confirms the condition of the carpet. Photographs of the carpet taken at the end of the tenancy confirm that the carpet was not reasonably new.
Pursuant to the Inland Revenue Department (“IRD”) depreciation schedule rental carpet has a relatively short lifespan of up to 8 years. That said, the tenants should also bear a degree of responsibility for the alleged damage in light of the number of dogs kept at the property. Without knowing the age and condition of the carpet at the start of the tenancy I am only prepared to allow a small contribution to the replacement cost incurred by the landlord.
Accordingly, the claim for carpet replacement is allowed in the form of a contribution.
In respect of the carpet, I have taken into account 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. I am unable to calculate depreciation, in the absence of evidence which confirms the age and condition of the carpet at the start of the tenancy.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act.
The tenant applied for non-publication of their names and identifying details. They have only been partly successful in the proceedings.
There is nothing to warrant a departure from the principle of open justice. I do not make any suppression orders regarding the publication of this decision.
Both parties seek reimbursement of their respective filing fees. Given that both parties have been partly successful they should therefore absorb their respective filing fees.
Accordingly, I make no order in respect of the filing fees.

Tenancy Tribunal case 4940658 — Property damage at 93 Sylvan Avenue, Northcote, Auckland 0627

At a glance

Tenancy Tribunal case 4940658 — Property damage at 93 Sylvan Avenue, Northcote, Auckland 0627

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and water rates?

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

How much is owed for rent and water rates?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions